Mr. Justice Scholeield
delivered the opinion of the Court:
This was an action of assumpsit, for use and occupation, by appellant, against appellees. The judgment of the Superior Court was for the defendants, the appellees, and that judgment was, on appeal to the Appellate Court for the First District, affirmed.
The facts material to a comprehension of the rulings now questioned in argument, are: On the 29th day of March, 1S80, Granville S. Ingraham and the appellant jointly executed their deed, whereby the former leased to the latter certain premises located in the city of Chicago, from the 1st day of May, 1880, until the end of the 30th day of April, 1881, in consideration of the covenants -therein of the latter. The deed contained this clause: “And it is also provided, as a part of this agreement, that the said Sutherland shall have the option to take the said premises for another year at the same price or rent, provided said first party does not sell said premises before the end of the month of April, A. D. 1881.” Some time in the month of September following, appellant either sold and assigned the lease, or sub-let the premises for the remainder of the term, to appellees,—but which it was, the witnesses testifying to the point do not agree. The evidence tended to show that in March or April, 1881, an agreement was made, and a memorandum thereof reduced to writing, and signed by Granville S. Ingraham, whereby he assumed to sell to Hiram Sibley these premises, for a consideration agreed upon, and undertook to convey the same by deed, “provided the abstract showed a good title;” - that he immediately placed Sibley in the actual possession of the premises, and that he executed and delivered to him the requisite deed therefor on the 20th of May, 1881; that appellees remained in possession of the premises after April 30, 1881, under a contract of renting theretofore made with Sibley; that appellant was never in the actual possession of the premises after the appellees entered into possession under the assignment or sub-letting, and that appellant sought to charge appellees, by notice served on them on the 26th of April, 1881, that if they held the premises the next year he should charge them $3600 therefor.
The main controversy arises on the rulings of the Superior Court in refusing an instruction asked by appellant, and in giving two instructions asked by appellees, when considered with reference to this state of case.' That asked by appellant, and refused by the court, is in these words:
“If the jury believe, from the evidence, that the plaintiff in this case took a lease of the premises in question for one year, from the 1st day of May, 1880, which lease contained a clause that the plaintiff, at the expiration of that year, had the option to have the said premises for another year unless the said owner should sell the same before the expiration of the said first year, and if the jury further believe, from the evidence, that the said owner did not sell the said premises before the expiration of said year, then the said plaintiff had the right, under said lease, to hold the said premises for another year; and if, at the expiration of the first year of said lease, the defendants were in possession of said premises under the plaintiff, and as his tenants, and if the jury further believe, from the evidence, that the plaintiff, Sutherland, gave notice before the end of said first year, to said defendants, that if they continued in possession after the expiration of said first year of his said lease then he should hold them to pay as rent for the second year, as stated in said notice by the plaintiff to the defendants, namely, the sum of $3600, and if the jury further believe, from the evidence, that the said defendants, after they received such notice, continued in possession of said premises, then the defendants became liable to said plaintiff to pay the rent at the rate of $300 per month, for the year, from May 1, 1881, to May 1, 1882; and if they believe that such rent has not been paid to said plaintiff, then the jury will find for the plaintiff, and assess the damages accordingly.”
The instructions given at the instance of appellees are as follows:
“On the part of the defendant the court instructs the jury, that if they believe, from the evidence, that one Granville S. Ingraham owned the premises in question, and executed a lease therefor to the plaintiff for one year, with the privilege of renewing for one or more years, provided said Ingraham did not sell the premises before the 30th day of April, 1881, and if they further believe, from the evidence, that the premises were sold by said Ingraham before the 30th day of April, 1881, then they should find for the defendants.
“The court instructs the jury, as a matter of law, that in order to constitute a sale of real estate' within the meaning of the clause in the lease introduced in evidence by plaintiff, it is not necessary that a deed should actually be executed and delivered, but any written agreement by or under which a party may enforce the making and delivery of a deed of conveyance, and in pursuance of which a deed is subsequently executed» and delivered, is, in the eyes of the law, a sale, within the meaning of said clause in said lease. ”
We are of opinion appellant has not been prejudiced by either of these rulings.
First—If the lease was assigned by appellant to appellees, as they contend, it is a sufficient answer to the position of appellant, that the option clause, as well as the other clauses of the lease, passed, by virtue of the assignment, to appellees. (Taylor on Landlord and Tenant, 2d ed. sec. 445.) But if, as appellant contends, the premises were only sub-let by him to appellees, it is to be observed the sub-letting could not be, and he does not claim that it in fact was, extended beyond the term of the letting to him, of which he was then in the possession. The clause giving the option to appellant to renew the lease is not a present demise of the premises for a term.eommeneing on the first day of May,, 1881, and ending with the month of April, 1882,—it is a mere covenant or undertaking to let appellant have such a term upon the eonditioninamed, at his election,—and hence, for a failure on the part of Ingraham to give possession and allow the use of the premises for and during such term, appellant’s only remedy would be by bill in equity for specific performance, or by action at law on the covenant or undertaking. (Hunter v. Silvers, 15 Ill. 174; Taylor on Landlord and Tenant, sec. 332.) If appellant had been let into possession of the premises after the 30th of April, 1881, his occupancy thenceforth would, we concede, have been under the option clause, and he could consequently then have only been held to the same terms as for the first year; but since his present letting expired with the 30th of April, 1881, the sub-letting of that term to appellees must necessarily have expired at the same time, and with it, of course, terminated appellees’ obligations to appellant as sub-tenants. Before that period they could do no act in denial of their obligation to attorn to him. After it, their relations having terminated, they could accept whom they pleased as landlord.
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Mr. Justice Scholeield
delivered the opinion of the Court:
This was an action of assumpsit, for use and occupation, by appellant, against appellees. The judgment of the Superior Court was for the defendants, the appellees, and that judgment was, on appeal to the Appellate Court for the First District, affirmed.
The facts material to a comprehension of the rulings now questioned in argument, are: On the 29th day of March, 1S80, Granville S. Ingraham and the appellant jointly executed their deed, whereby the former leased to the latter certain premises located in the city of Chicago, from the 1st day of May, 1880, until the end of the 30th day of April, 1881, in consideration of the covenants -therein of the latter. The deed contained this clause: “And it is also provided, as a part of this agreement, that the said Sutherland shall have the option to take the said premises for another year at the same price or rent, provided said first party does not sell said premises before the end of the month of April, A. D. 1881.” Some time in the month of September following, appellant either sold and assigned the lease, or sub-let the premises for the remainder of the term, to appellees,—but which it was, the witnesses testifying to the point do not agree. The evidence tended to show that in March or April, 1881, an agreement was made, and a memorandum thereof reduced to writing, and signed by Granville S. Ingraham, whereby he assumed to sell to Hiram Sibley these premises, for a consideration agreed upon, and undertook to convey the same by deed, “provided the abstract showed a good title;” - that he immediately placed Sibley in the actual possession of the premises, and that he executed and delivered to him the requisite deed therefor on the 20th of May, 1881; that appellees remained in possession of the premises after April 30, 1881, under a contract of renting theretofore made with Sibley; that appellant was never in the actual possession of the premises after the appellees entered into possession under the assignment or sub-letting, and that appellant sought to charge appellees, by notice served on them on the 26th of April, 1881, that if they held the premises the next year he should charge them $3600 therefor.
The main controversy arises on the rulings of the Superior Court in refusing an instruction asked by appellant, and in giving two instructions asked by appellees, when considered with reference to this state of case.' That asked by appellant, and refused by the court, is in these words:
“If the jury believe, from the evidence, that the plaintiff in this case took a lease of the premises in question for one year, from the 1st day of May, 1880, which lease contained a clause that the plaintiff, at the expiration of that year, had the option to have the said premises for another year unless the said owner should sell the same before the expiration of the said first year, and if the jury further believe, from the evidence, that the said owner did not sell the said premises before the expiration of said year, then the said plaintiff had the right, under said lease, to hold the said premises for another year; and if, at the expiration of the first year of said lease, the defendants were in possession of said premises under the plaintiff, and as his tenants, and if the jury further believe, from the evidence, that the plaintiff, Sutherland, gave notice before the end of said first year, to said defendants, that if they continued in possession after the expiration of said first year of his said lease then he should hold them to pay as rent for the second year, as stated in said notice by the plaintiff to the defendants, namely, the sum of $3600, and if the jury further believe, from the evidence, that the said defendants, after they received such notice, continued in possession of said premises, then the defendants became liable to said plaintiff to pay the rent at the rate of $300 per month, for the year, from May 1, 1881, to May 1, 1882; and if they believe that such rent has not been paid to said plaintiff, then the jury will find for the plaintiff, and assess the damages accordingly.”
The instructions given at the instance of appellees are as follows:
“On the part of the defendant the court instructs the jury, that if they believe, from the evidence, that one Granville S. Ingraham owned the premises in question, and executed a lease therefor to the plaintiff for one year, with the privilege of renewing for one or more years, provided said Ingraham did not sell the premises before the 30th day of April, 1881, and if they further believe, from the evidence, that the premises were sold by said Ingraham before the 30th day of April, 1881, then they should find for the defendants.
“The court instructs the jury, as a matter of law, that in order to constitute a sale of real estate' within the meaning of the clause in the lease introduced in evidence by plaintiff, it is not necessary that a deed should actually be executed and delivered, but any written agreement by or under which a party may enforce the making and delivery of a deed of conveyance, and in pursuance of which a deed is subsequently executed» and delivered, is, in the eyes of the law, a sale, within the meaning of said clause in said lease. ”
We are of opinion appellant has not been prejudiced by either of these rulings.
First—If the lease was assigned by appellant to appellees, as they contend, it is a sufficient answer to the position of appellant, that the option clause, as well as the other clauses of the lease, passed, by virtue of the assignment, to appellees. (Taylor on Landlord and Tenant, 2d ed. sec. 445.) But if, as appellant contends, the premises were only sub-let by him to appellees, it is to be observed the sub-letting could not be, and he does not claim that it in fact was, extended beyond the term of the letting to him, of which he was then in the possession. The clause giving the option to appellant to renew the lease is not a present demise of the premises for a term.eommeneing on the first day of May,, 1881, and ending with the month of April, 1882,—it is a mere covenant or undertaking to let appellant have such a term upon the eonditioninamed, at his election,—and hence, for a failure on the part of Ingraham to give possession and allow the use of the premises for and during such term, appellant’s only remedy would be by bill in equity for specific performance, or by action at law on the covenant or undertaking. (Hunter v. Silvers, 15 Ill. 174; Taylor on Landlord and Tenant, sec. 332.) If appellant had been let into possession of the premises after the 30th of April, 1881, his occupancy thenceforth would, we concede, have been under the option clause, and he could consequently then have only been held to the same terms as for the first year; but since his present letting expired with the 30th of April, 1881, the sub-letting of that term to appellees must necessarily have expired at the same time, and with it, of course, terminated appellees’ obligations to appellant as sub-tenants. Before that period they could do no act in denial of their obligation to attorn to him. After it, their relations having terminated, they could accept whom they pleased as landlord. The notice given by appellant, in advance of the expiration of the first term, that if appellees continued to remain in possession of the premises the next year he should require them to pay at the rate of $3600 per annum, could amount to nothing, because he was not then possessed of the term for which he proposed to make the charge, and he never afterwards became so possessed. It is too evident to require argument that he could not, by such a notice, cut off the rights of appellees to accept another landlord when their duties to him as sub-tenants should cease, and compel them to wholly abandon the property at the end of that term or accept him as their landlord upon his own conditions. "When that notice was given he not only possessed no term about which to negotiate, but he could not know, until the end of the month of April, whether, under the clause giving him the option, the condition of things would exist that would allow him to elect to take a term for another year; and since no person can be made the agent of another against his will, where his relations to that other at the time do not of themselves, in legal contemplation, make him such agent, there can he no principle upon which the possession of appellees after the month of April, 1881, (held, as it was, under Sibley, as their landlord,) can be held to have been the possession of the appellant.
The instruction refused was in direct opposition to this view of the law, and was, therefore, properly refused.
Second—The manifest purpose of reserving the right to sell the property, free of the lease, at any time before the end of the term fixed by the lease, was to enable Ingraham to give possession at the end of that term to the purchaser. Whether the deed was to be executed on one day or another, plainly could make no sensible difference to him; but it could, and doubtless would, make a very great difference to him whether the property was in a condition in which he could speedily realize its value hy a sale. The word “sale” is certainly used in its general sense, and, as we think, also in its popular sense, and therefore includes what counsel for appellant claim is but a contract of sale. It is not qualified, and properly, therefore, must embrace both absolute and conditional sales. (See 2 Bouvier’s Law Dic;,495, title “Sale,” 15.) At law a deed is essential to vest title to real estate, but in equity the title will be treated and protected as being where the parties have contracted it shall be, for that purpose holding the vendor as trustee of the legal title for the benefit of the vendee, while the latter is looked upon as trustee of the purchase money for the benefit of the vendor. Bispham’s Principles- of Equity, (2d ed.) 423; 2 Bouvier’s Law Die. supra.
In an equitable view, therefore, it is not inaccurate to say there has been a sale of real estate when there has been only a contract to that effect, and possession delivered in accordance therewith. But at law a conveyance alone does not constitute a sale. It is but the final step in the consummation of á sale. It must be executed and accepted in accordance with a precedent contract of sale, express or implied. It may be admitted that it is the last step in the consummation of the sale, but that does not determine that its date shall be regarded as the date of the sale. In cases like the present, we think, it conforms to the intention of the parties, and better subserves the end of justice, to hold that the consummation of the sale by the execution of the deed shall, by relation, vest title, and therefore evidence an executed sale as of the date of the contract, or the delivery of possession, pursuant to which it was executed. And the following cases, cited by counsel for appellees, may be regarded as authority for this view: Schneider v. Botsch, 90 Ill. 577; Rogers v. Brent, 5 Gilm. 573; Welch v. Dutton, 79 Ill. 465; Kruse v. Wilson, id. 233; Jayne v. Gregg, 42 id. 413. This accords with the effect of the ruling of the Superior Court in the instructions given.
■ Two minor objections in regard to rulings in admitting certain evidence, and in refusing to exclude certain other evidence, were urged in argument as grounds of reversal, but we presume not seriously. The evidence admitted, to which the objection was urged, was clearly admissible as secondary evidence of the contents of a lost instrument, the proper foundation having been previously laid; and the evidence sought to be excluded was. clearly admissible as fart of the res gestee, in connection with the evidence of the sale of the premises.
We approve the decision of the Appellate Court in all respects. It is therefore affirmed.
Judgment affirmed.