Weber v. Powers

68 L.R.A. 610, 213 Ill. 370

• Court: Illinois Supreme Court
• Decided: December 22, 1904
• Status: Published

Opinion

Mr. Justice Magruder

delivered the opinion of the court:

. The material question, presented by the record in this case, is whether the appellee was authorized by the power of attorney to confess judgment to enter up a judgment for rent, alleged to have accrued after the expiration of the written lease, and while appellant was in possession of the premises after such expiration either by virtue of holding over under the lease, or by virtue of a new agreement made between the parties.

By the terms, of the written lease, under which appellant originally entered, he was to hold the premises from the first day of June, 1900, until the last day of April, 1902, a period of twenty-three months, and to pay as rent therefor “the sum of $1150.00, payable in monthly installments of $50.00 each in advance upon the first day of each and every month of said term.” Appellant paid all the rent due by the terms of the written lease up to the last day of April, 1902. He remained in possession five months after the lease expired, and until the latter part of September, 1902, when he abandoned the premises. He paid rent at the rate of $50.00 per month for each of the five months, during which he remained in possession after the expiration of the lease. The judgment was entered for rent at the rate of $50.00 per month for the seven months inclusive from October 1, 1902, when appellant left the premises, up to May 1, 1903, together with costs and attorneys’ fees. Did appellee have any authority, under the warrant of attorney contained in the lease, to enter up judgment by confession against appellant for the period of seven months from October 1, 1902, to May 1, 1903?

Certainly, the warrant of attorney, contained in the lease, did not in express terms confer any authority to enter up judgment for any rent accruing after April 30, 1902, when the term mentioned in the written lease expired.

It is claimed, on the part of appellee, that, after April 30, 1902, the date of the expiration of the lease, appellant held over with the consent of the appellee, the landlord, upon the same terms and conditions, which are prescribed in the original lease, and that, inasmuch as the landlord was authorized by the terms of the lease to enter up judgment for the rent accruing while the lease was in force, he was also authorized to enter up judgment for the rent, which accrued while the appellant was holding over, it being contended that the power to confess judgment was continued after the expiration of the lease during the period of the holding over by the appellant, if there was such holding over.

It is the settled doctrine of this court, that the authority to confess a judgment without process must be clear and explicit, and must be strictly pursued; and that, if there is no power to enter the appearance of the debtor and confess the judgment, such judgment is a nullity, and binds no one, and may be attacked collaterally for want of jurisdiction in the court to render it. (Chase v. Dana, 44 Ill. 262; Tucker v. Gill, 61 id. 236; Roundy v. Hunt, 24 id. 598; Frye v. Jones, 78 id. 627; Mayer v. Pick, 192 id. 561; Whitney v. Bohlen, 157 id. 571; Blake v. State Bank of Freeport, 178 id. 182; Krickow v. Pennsylvania Tar Manf. Co. 87 Ill. App. 653; Hall v. Hamilton, 74 Ill. 437; Frear v. Commercial Nat. Bank, 73 id. 473; Little v. Dyer, 138 id. 272).

Here, the warrant of attorney authorized any attorney of any court of record “to enter (appellant’s) appearance in such court, waive process and service thereof and confess judgment from time to time for any rent, which may be due to said party of the first part * * * by the terms of this lease.” The only rent, which might be due to appellee by the terms of the written lease, was the sum of $1150.00, payable in monthly installments of $50.00 each in advance, upon the first day of each and every month during the period of twenty-three months, extending from June 1, 1900, to April 30, 1902. For any of the installments of rent at the rate of $50.00 per month, which might be due during this period of twenty-three months, and which was a part of the sum of $1150.00, judgment by confession could be entered up. But the warrant of attorney confers no authority to confess judgment for any other amounts, or for any amounts accruing during any other period. The warrant of attorney does not authorize the confession of judgment for rent, which may be due according to the terms of an oral demise, existing after the expiration of the written lease. The lease itself does not contain any covenant or. agreement on the part of the lessor for a renewal of the lease. The old, or written, lease is not the contract of the parties for a new term, but is only evidence to uphold the implied contract, resulting from the holding over of the tenant. (1 Wood on Landlord and Tenant, sec. 13). Such holding over, where it exists, becomes in effect a parol demise during the holding, and will be barred in due time by the Statute of Limitations. (2 Taylor on Landlord and Tenant, sec. 525; Stewart v. Apel, 5 Houst. (Del.) 189).

Parol evidence must be resorted to to show that, where the tenant remains in possession after the expiration of the written lease, he holds over under the terms of such lease. A power to confess judgment for the rent, due by the terms of the written lease, cannot be construed into a power to enter up judgment for rent accruing under an implied contract, resulting from the fact of a holding over by the tenant. In this case, to give the warrant of attorney such a construction, would be in violation of the rule, that such warrants of attorney should be strictly construed.

“Where a tenant for a year or years holds over after the expiration of his lease, without having made any new arrangement with his landlord under which such holding over takes place, the landlord, at his election, may treat the tenant as a trespasser, or as a tenant for another year, upon the same terms as in the original lease, and this though the tenant has no intention of holding over for a year, or of paying the same rent. The law fixes the tenant’s liability for holding over, independent of his intention. The legal presumption of a renewal from the holding over cannot be rebutted by proof of a contrary intention on the part of the tenant alone.” (Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151). The right of election as to whether the tenant, remaining in possession after the expiration of the lease, is holding over upon the same terms as in the original lease is a right, which belongs to the landlord, and not to the' tenant. It is the landlord alone, whose intention on the subject is to be ascertained, as it is he alone, who may elect to treat the tenant as holding over under the terms of the old lease. (Keegan v. Kinnare, 123 Ill. 280). It is true, that, as a general rule, the law by implication creates a new tenancy from year to year, where the tenant holds possession of the premises after the expiration of a lease for year, or years, under which he went into possession, but such implication is not conclusive ; it may ,be rebutted by the acts of the parties; and it is a question of fact for the jury to determine, under the instructions of the court, whether or not the holding over is such as to create a new tenancy. While the legal presumption of a renewal of the tenancy from the holding over of the tenant cannot be rebutted by proof of a contrary intention on the part of the tenant alone, it can be rebutted by proof of a contrary intention on the part of the landlord alone, or on the part of both parties. (Clinton Wire Cloth Co. v. Gardner, supra). If it be a question of fact to be determined by the jury, under the instructions of the court, whether the holding over is such as to create a new tenancy, then such question of fact cannot be determined by a confession of it in a cognovit, and by a judgment of confession, entered in pursuance of such cognovit. So tp hold would be to deprive the debtor of his right to a trial by jury. The debtor, in authorizing a confession of judgment against him for rent, due by the terms of a written lease which he has signed, cannot be thereby made to confess judgment in favor of a renewal of such lease, or in favor of a holding over under such lease. The fact of a renewal, or the fact of a holding over, is a fact dehors the written lease and the terms of the written power of attorney, contained in the lease. A judgment by confession must be for a 'fixed and definite sum, and not in confession of a fact, that can only be established by testimony outside of the written documents, required by the statute to be filed in order to enter up a judgment by confession.

In Smith v. Pringle, 100 Pa. St. 275, the Supreme Court of Pennsylvania held that a confession of judgment for a term certain has reference to that particular term only, and does not authorize the entry of judgment for rent, accruing after the expiration of the term certain where the tenant has held over. In that case, a judgment by confession was entered up for a certain amount upon a confession of judgment, contained in a lease of certain premises executed byPringle to Smith. Smith obtained a rule to show cause why the judgment should not be opened, and he be let into a defense, which rule was afterwards made absolute, but the judgment was reversed, and the court there said: “The judgment in this case was entered under the power contained in the lease by Pringle to Smith for one year from April i, 1875, at the rent of $450.00. The judgment was confessed for the full sum of $450.00 evidently to secure the payment of that rent. There is nothing to extend it as security beyond that amount. The renewal of the lease by the tenant continuing in possession clearly would not do so. When, therefore, the rent for the term of the lease was paid, the judgment was paid. The implied renewal of the lease could not revive the judgment once extinguished and dead. That the plaintiff might have recovered the rent accruing subsequently was nothing to the purpose.” So, in the case at bar, the warrant of attorney gave authority to confess judgment for $1150.00, or for monthly installments of that sum amounting to $50.00 each, and accruing during the period of twenty-three months from June 1, 1900, to April 30,' 1902. The warrant of attorney could not be extended as security beyond that amount, and the continuation of appellant in possession beyond the expiration of the lease could not do so. When appellant paid all the rent, amounting to $1150.00, which became due in monthly .installments during the period of twenty-three months, he paid all the money, for which the warrant of attorney authorized judgment to be entered up against him. The power, conferred by the warrant of attorney, was thereby exhausted, and could not be revived by an implied contract, resulting from a holding over by appellant. Counsel for appellee say that a warrant of attorney to confess judgment is a familiar common law security, and is extended with the extension of the principal obligation, citing Bush v. Hanson, 70 Ill. 480. Undoubtedly, if the principal obligation, named in the present lease, that is to say, the obligation to pay $1150.00 of rent in monthly installments during a period of twenty-three months, had been assigned by appellee, the security afforded by the warrant of attorney would have passed to such assignee. But in such case the debt assigned would be the same debt, for which the warrant of attorney authorized the confession of judgment, and not a new and different debt, accruing subsequently, and growing by implication out of a holding over by the tenant. ,

The rule that, where a tenant for year or years holds over after the expiration of his lease, the landlord, at his election, may treat the tenant as a tenant for another year upon the same terms as in the original lease, is subject to the condition, that such holding over after the expiration of the lease is not under any new arrangement, made by the landlord with the tenant. The rule does not apply where there is a new contract between the landlord and tenant, under which the latter remains in possession. (Clinton Wire Cloth Co. v. Gardner, supra; Keegan v. Kinnare, supra; Goldsborough v. Gable, 140 Ill. 269). The doctrine is thus stated in 18 Am. & Eng. Ency. of Law,—2d ed.—p. 407: “In the absence of any express stipulations, the new tenancy, created by a tenant’s holding over after the expiration of his lease, is implied by law to be upon the same terms and subject to all the covenants contained in the expired lease.” In Prickett v. Ritter, 16 Ill. 96, it was held that, where a tenant under a-lease for a year or years, or for a stated period, holds over, it will be construed as an implied" agreement, that he shall hold over for a corresponding period upon the same terms as to rent and times of payment, unless there be some act of one or of both the parties, which rebuts the implication. (See also Hunt v. Morton, 18 Ill. 75; McKinney v. Peck, 28 id. 174).

In the case at bar, the affidavits, filed upon the motion to vacate the judgment and for leave to plead to the declaration, show that there was some new arrangement between appellee and appellant in reference to holding over, and to the continued possession of the premises by the appellant. Appellant in his affidavit swears that appellee, or his representative, proposed to him before the expiration of the written lease to give him a new lease of the premises for two years, and that appellant agreed to remain upon the premises, and pay the same rent which he had already paid, on condition that certain repairs should be made. Appellee himself in his- affidavit swears that, before the expiration of the old lease, he agreed with appellant that the latter should remain in possession of the premises at the same rent and upon the same terms, and that appellant agreed to execute a new lease-upon the same conditions, terms and promises as set forth in the old lease; and he also swears that in August, 1902, after the expiration of the lease, appellant agreed with him to sign a lease of the premises for two years upon the same terms as set forth in the old lease which expired on April 30, 1902. The new agreement, thus made between the parties, was different from the old agreement. The old agreement provided for a demise of the premises for a period of twenty-three months, while the new agreement provided for a demise of the premises for a period of two years. The presumption, which would arise from the holding over by tlíe appellant, would be that the tenancy was renewed for a period of twenty-three months, or for one year. But this presumption is rebutted by the statement, made in the affidavits, that the parties agreed upon a lease for two years, one of them saying that such lease was to be made absolutely and without condition, and the other, that it was to be made upon the condition that certain repairs were to be made by the lessor. The new arrangement made, or sought to be made, as set forth in the statement preceding this opinion, is inconsistent with the idea, that appellee, as landlord, was treating the appellant as a tenant holding over under the same terms, as were prescribed by the lease.

It is true that the new agreement for a lease for a period of two years was an oral agreement, and, under the Statute of Frauds, was void as being an agreement that was not to be performed within the space of one year from the making thereof. (2 Starr & Curt. Ann. Stat.—2d ed.—p. 1991). But although the agreement may have been void under the Statute of Frauds, yet inasmuch as the treatment by the landlord of the tenant, who holds over, as one who holds over under the terms and conditions of the old lease, is a matter of intention on the part of the landlord, such void verbal agreement serves to explain the holding over after the expiration of the written lease, and to show that it was not upon the terms of the original lease. That such a new verbal contract, void under the Statute of Frauds, may serve to show that the landlord did not intend to treat the tenant as holding over under the terms of the original lease, was held by the Supreme Court of Alabama in the case of Crommelin v. Theiss & Co. 31 Ala. 412, and approved of by this court in Clinton Wire Cloth Co. v. Gardner, supra. It being true, then, that the execution of a new agreement between the parties, or the pendency of a treaty between them for a further lease, rebuts the presumption, that appellee intended to treat appellant as a tenant holding over under the old lease, it cannot be said that the power conferred by the warrant of attorney to confess judgment for rent, due under the old lease, was continued after the expiration of such lease, and warranted the entry of judgment against the appellant for the rent accruing after such expiration. If appellant was not holding over under the terms and conditions of the old lease, he was not holding over subject to the right of the appellee to enter judgment under the warrant of attorney, as expressed in the old lease.

There is another qualification to the rule, already announced, as to the presumption of the implied contract from the fact of the holding over by the tenant. Taylor, in his work on Landlord and Tenant, (vol. 2,—9th ed.—sec. 525), says: “Where the landlord suffers the tenant to remain in possession after the expiration of the original tenancy, the law presumes the holding to be upon the terms of the original demise, subject to the same rent and to the covenants of the original lease, so far at least as these are applicable to the new condition of things.” The qualification here referred to is, that the covenants of the original lease shall be applicable to the new condition of things. If, in the present case, the warrant of attorney to confess judgment, as embodied in the lease, is a covenant, and not a mere collateral agreement, it cannot be said that it is applicable to the new condition of things, created by the holding over of appellant under the circumstances already stated. A power of attorney to confess judgment is a written instrument, and the covenant to pay rent, as embodied in the lease, is a written obligation. Therefore, the warrant of attorney in the lease is a written power of attorney to enter judgment upon a written obligation. If the warrant of attorney is applicable to the holding over as thus indicated, then there would be a mere oral or implied power of attorney to enter judgment upon an oral or implied contract. Therefore, upon the doctrine of inapplicability, it cannot be said that the authority to confess judgment was extended from the original lease to the subsequent implied contract, created by the holding over.

For the reasons above stated, we are of the-opinion that the Appellate Court, and the superior court of Cook county, erred in denying the motion to yacate the judgment, and in refusing to allow appellant to plead to the declaration.

Accordingly, the judgments of the Appellate Court and of the Superior court of Cook county are reversed, and the cause is remanded to the superior court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.