Brunton v. Habel

Full title: Robert Brunton, Appellant, v. Ben Habel, Appellee

Court: Appellate Court of Illinois

Date published: Feb 16, 1948

77 N.E.2d 566 (Ill. App. Ct. 1948)

77 N.E.2d 566

Opinion

Gen. No. 44,193.

Opinion filed February 16, 1948. Released for publication March 2, 1948.

1. FORCIBLE ENTRY AND DETAINER, § 73^_ — sufficiency of evidence as to right of possession. In forcible entry and detainer action brought against person in actual peaceable possession of premises, evidence establishing plaintiff's title through tax deed, service of demand on defendant for immediate possession and five-day notice reciting rent due, was insufficient to establish plaintiff's right to possession, and thereby throw on defendant burden of proving his own right to possession, in absence of evidence that plaintiff, or any person through whom he claimed title, was ever in actual possession.

_ See Callaghan's Illinois Digest, same topic and section number.

2. FORCIBLE ENTRY AND DETAINER, § 71^fn_ — presumptive rightfulness of possession. Person in actual and peaceable possession of land will be deemed to be rightfully in possession, and burden of proof is upon him who would dispute that possessory right.

3. FORCIBLE ENTRY AND DETAINER, § 71^fn_ — necessity of establishing right of possession. In action of forcible entry and detainer plaintiff must show right of possession in himself, and he cannot rely upon lack of right in those whom he seeks to dispossess.

Appeal by plaintiff from the Circuit Court of Cook county; the Hon. DENIS J. NORMOYLE, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1947. Affirmed. Opinion filed February 16, 1948. Released for publication March 2, 1948.

HANSEN HANSEN, of Chicago, for appellant; LEITH M. HANSEN, of Chicago, of counsel.

SOELKE KEEHN, of Chicago, for appellee.

MR. PRESIDING JUSTICE NIEMEYER delivered the opinion of the court.

Plaintiff, in a forcible detainer action instituted before a justice of the peace, appeals from an adverse judgment entered in the circuit court on appeal by defendant.

Plaintiff claims title to the premises in question under a quitclaim deed dated August 11, 1944, from grantors basing their title, through mesne conveyances, on a tax deed issued July 12, 1934. There is no evidence that plaintiff, or any of the persons through whom he claims title, was ever in actual possession of the premises. When or how defendant acquired possession is not shown. It does appear that on May 2, 1946, plaintiff served on defendant a demand for immediate possession and also a 5 days' notice reciting that there was then due $30 — the rent for the month of May. At that time defendant was in actual peaceable possession of the premises and operating a garage thereon. Plaintiff offered no evidence except that establishing his title through the tax deed, and the service of the two notices on defendant. Defendant offered no evidence.

Plaintiff contends that, having established title through the tax deed, the burden rested on defendant to show his right to possession. This is not the law. In Fitzgerald v. Quinn, 165 Ill. 354, the court said (365, 366): "The person who is in the actual and peaceable possession of land will be deemed to be rightfully in possession, and the burden of proof is upon him who would dispute that possessory right. . . . One suing under the Forcible Entry and Detainer act must show a right of possession in himself, and he cannot rely upon the lack of right in those whom he seeks to dispossess. McIlwain v. Karstens, 152 Ill. 135." See also Ladd v. Ladd, 168 Ill. App. 302.

The judgment is affirmed.

Affirmed.

FEINBERG and O'CONNOR, JJ., concur.