Montanye v. Wallahan

Citations

• 84 Ill. 355

Syllabus

<p>1. Landlord and tenant—when tenant considered as holding over. Where the landlord, at the expiration of a written lease for one year, demanded possession, which the tenant refused to deliver, but afterwards, and on the same day, without notice to the landlord, left the premises, and returned on the next day and continued in possession for nearly two years, without any further contract for leasing, or payment, or demand of rent, it was held, that there was a holding over, under the terms of the written lease.</p> <p>2. Same—eviction by law to excuse payment of rent need not be actual expulsion. Where a tenant in possession is ordered by the sheriff, having a writ of restitution based upon a judgment against the landlord, to vacate the premises described in the writ, and he and his family leave the premises and commence to take their goods away, and then the party entitled to possession under the writ executes a lease to such tenant, and permits him to retain possession under him, there is such an eviction by judgment of court as excuses the tenant from the payment of rent to the first landlord.</p> <p>3. Mistake—in name of party in body of contract does root vitiate. Although a party to a lease may be misnamed in the body of the writing, yet if he signs it, it is his contract, no matter by what name he is called in the body of the instrument.</p> <p>4. Rehearing—stay-order on petition does not affect what is already done. Where a judgment has been affirmed in the Supreme Court, and a writ of restitution issued under it, and a tenant evicted, a motion for a rehearing entered and a stay-order made will not affect what has already been done.</p> <p>5. Same—effect of reversal. Where a judgment of the circuit court has been affirmed by the Supreme Court, and upon a rehearing it is reversed, such judgment of reversal will not retroact and disturb any rights which may have been innocently acquired under the judgment of affirmance, and upon the faith of it whilst it was i