Opinion of the Court, the
Hon. Carroll C. Boggs, Judge.It is first contended that the notice given by the appellee was not sufficient to terminate the lease and create a forfeiture. The grounds of such supposed deficiency are thus stated by counsel:
1. Because there is no demand of rent due upon the premises before declaring a forfeiture.
2. Because appellee did not turn over to appellants or offer to deliver up to them all rent notes held by her, except the one on which the forfeiture was declared, according to a provision of the lease to that effect.
The paper served upon the appellant advised them that appellee was the owner and holder of a rent note more than two months past due and unpaid; declared the lease terminated and demanded immediate payment of the unpaid rent. Had the notice contained nothing further, it might have been regarded as an attempt to declare and enforce a forfeiture solely under the provisions of the lease and without regard to either the common law or statutory requirements concerning such forfeitures; but the notice proceeded to require the surrender of the premises, only in case appellants failed to pay the rent note within five days thereafter.
When all that is contained in the notice is considered together, it is simply a demand for payment of rent, with a declaration of forfeiture and demand for possession if such payment is not made in five days, and is in compliance with Sec. 8, Chap. 80, B. S., which authorizes a forfeiture in such state of case.
The common law rule that to create the forfeiture of a lease for non-payment of rent, a demand for payment must be made upon the premises, or some part thereof, is, we think, dispensed with by necessary implication arising from our statutes. Woodward v. Cone, 73 Ill. 24. It is true that in the case cited it is distinctly said that ten days’ notice to quit is essential to create a forfeiture. Such was the requirement of the statutes (1865) then in force, but this has been changed by the 8th section of Chap. 80 of our statutes now in force and governing this case. Only five days’ notice is now required if rent be due and unpaid.
While it is true that the notice in the case at bar contains a demand for immediate payment, it is further true that the time fixed for such payment, to avoid the surrender of the premises, is placed at five days. This is sufficient mention of the time within which payment may be made under the statute. Farnam v. Holman, 90 Ill. 312.
Nor do we think the second alleged ground of objection is well taken. The sixth clause of the lease does expressly provide that all of the unmatured rent notes shall be surrendered in case of a forfeiture.
The unmatured notes are not, however, notes given by the appellants; upon the contrary, are notes executed by the appellee and J. B. White.
We are unable to perceive any reason why the appellee should be called upon to surrender up these notes to the appellants.
The appellants have no right to them; nor are they under any obligation to pay them if not delivered up. We think the appellee had the right to retain them, at least as against all persons other than J. R. White.
It is urged that the appellee has no cause of action as holder of the notes because the notes were extinguished by the payment of them by her. The proof, we think, is that the appellee did not pay the notes but purchased them, and also the lease, as an indemnity against loss because of her suretyship for J. R. White.
This she might lawfully do, and keep them alive and not discharged as by payment, though she, as surety, was one of the payors of the notes. Brandt on Suretyship, Sec. 371; Allen v. Powell, 108 Ill. 584.
It is thought the appellee ought not to recover because the appellants had no notice of her claim for rent or of the assignment of the notes and lease to her at the time they paid the notes given by them to J. R. White for the rents.
The appellants obtained whatever interest they have in the premises by a lease, in the body of which is fully set out the fact that these notes were given for rents specified in the lease and constituted the consideration thereof. There the notes are also fully described. The appellants stand charged with notice of all that is thus contained in that lease.
Counsel upon one side argue that the appellee and J. R. White, her husband, are perpetrating a wrong upon the appellants which will, if this judgment is affirmed, result in forcing appellants to lose the amount paid by them upon the notes given by them to J. R. White upon the supposition that White had paid the notes mentioned in the lease, while counsel upon the other side argue that the appellants and J. R. White confederated together and are acting in concert in endeavoring to defeat the notes purchased and owned by her.
The record is without evidence in support of either of these views, though one or the other is doubtless true. We are powerless to correct or prevent, by any ruling upon the points presented by the record, the consummation of the wrong that it is apparent has been or attempted to be perpetrated by one or the other of these parties to this cause.
The parties respectively have chosen to prosecute and defend upon legal points, and though each cries fraud against the other, neither presents proof in support of the charge.
A recovery, it is said, can not be upheld because there was no attornment to appellee by the appellants. We think that the enactment of Sec. 14, Chap. 80 R. S. (Starr & Curtis’ Statutes, 1497) dispensed with the necessity of an attornment and abrogated the rule announced in Fisher v. Deering, 60 Ill. 114.
All leases except leases at will may be assigned if there is no restriction in the lease itself (12 Amer. & Eng. Ency. of Law, 1029), and the assignee of a lease is granted by the said Sec. 14 of Chap. 80, R. S., the same remedies, by action or otherwise, for the non-performance of any agreement in the lease for the recovery of rent or other cause of forfeiture, as the lessor might have had, while the owner of the lease or attornment must, we think, be hereafter deemed unnecessary to vest the assignee of a lease with the full rights of his assignor—the original lessor.
The finding, ruling and judgment of the Circuit- Court are, we think, correct, and must be and are affirmed.