Neagle v. Kelly

Citations

• 146 Ill. 460
• 34 N.E. 947

Syllabus

<p>1. Statute oe Fbauds—promise to pay debt of anothei—contract, whether collateral. The holder of a lease, who was liable to his lessor for the payment of a ground rent, put a third person in possession of the premises under his agreement to pay such ground rent: Held, that such agreement by the latter to pay the rent owing by his lessor was not collateral to any agreement made by the first lessee, but was an original undertaking, and did not fall within the Statute of Frauds.</p> <p>2. Same—waived if not pleaded in time. Unless the Statute of Frauds is pleaded or relied upon in the trial court it can not be availed of as a defense on appeal or writ of error, but will be held as waived.</p> <p>3. Laudeobd and tenant—when rent includes the payment of taxes. Where a party leases land under a lease or agreement, by which he is to pay to the lessor a monthly rental in cash and also to pay all taxes on the property, the taxes so agreed to be paid will constitute a part of the rent, and may be recovered as such in a suit upon the lessee’s bond given to secure the rent due and to become due.</p> <p>4. Appeal bond—condition of bond as to payment of rent, construed. Under the condition in an appeal bond, given on appeal in an action of forcible detainer, that the appellant should pay the appellee “all rent now due and that may become due before the final determination of the suit,” the obligee may recover for the taxes, when the rent agreed to be paid includes the taxes.</p>