{ "id": 2701823, "name": "Urban Investment and Development Co. et al., Plaintiffs-Appellants, v. Maurice L. Rothschild & Co., Defendant-Appellee", "name_abbreviation": "Urban Investment & Development Co. v. Maurice L. Rothschild & Co.", "decision_date": "1975-01-10", "docket_number": "No. 59061", "first_page": "546", "last_page": "555", "citations": [ { "type": "official", "cite": "25 Ill. App. 3d 546" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "266 F. 657", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6735112 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/f/266/0657-01" ] }, { "cite": "13 F.2d 529", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1305442 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/f2d/13/0529-01" ] }, { "cite": "67 F.2d 704", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 284729 ], "year": 1926, "opinion_index": 0, "case_paths": [ "/f2d/67/0704-01" ] }, { "cite": "59 N.E.2d 308", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "324 Ill.App. 622", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4960004 ], "opinion_index": 0, "case_paths": [ "/ill-app/324/0622-01" ] }, { "cite": "55 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582976 ], "weight": 2, "pin_cites": [ { "page": "132" }, { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nm/55/0127-01" ] }, { "cite": "198 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill.App.2d 294", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5269592 ], "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/47/0294-01" ] }, { "cite": "106 N.E. 814", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "265 Ill. 263", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4777060 ], "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill/265/0263-01" ] }, { "cite": "279 N.E.2d 375", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2834883 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0851-01" ] }, { "cite": "476 S.W.2d 134", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9927560 ], "pin_cites": [ { "page": "137-38" } ], "opinion_index": 0, "case_paths": [ "/sw2d/476/0134-01" ] }, { "cite": "46 S. E. 24", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "25" } ], "opinion_index": 0 }, { "cite": "134 N. C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272663 ], "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc/134/0116-01" ] }, { "cite": "141 S.C. 251", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 8715359 ], "weight": 2, "year": 1903, "pin_cites": [ { "page": "256" }, { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/sc/141/0251-01" ] }, { "cite": "34 Ill.App. 357", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4996462 ], "year": 1956, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/ill-app/34/0357-01" ] }, { "cite": "60 Idaho 515", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4388224 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/idaho/60/0515-01" ] }, { "cite": "39 N.Y. 147", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 502244 ], "year": 1939, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/ny/39/0147-01" ] }, { "cite": "99 N.E. 638", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "255 Ill. 545", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4699654 ], "opinion_index": 0, "case_paths": [ "/ill/255/0545-01" ] }, { "cite": "21 N.E. 920", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1969, "opinion_index": 0 }, { "cite": "129 Ill. 318", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2964327 ], "year": 1969, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill/129/0318-01" ] }, { "cite": "199 N.E.2d 217", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill.App.2d 407", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5273345 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/49/0407-01" ] }, { "cite": "128 N.E.2d 883", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill.2d 365", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708300 ], "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0365-01" ] }, { "cite": "146 N.E.2d 928", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "336 Mass. 606", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 881875 ], "opinion_index": 0, "case_paths": [ "/mass/336/0606-01" ] }, { "cite": "300 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "13 Ill.App.3d 768", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5346985 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0768-01" ] }, { "cite": "264 A.2d 526", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8077549 ], "opinion_index": 0, "case_paths": [ "/a2d/264/0526-01" ] }, { "cite": "210 Miss. 160", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 1839416 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/miss/210/0160-01" ] }, { "cite": "72 Ariz. 177", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 5188485 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/ariz/72/0177-01" ] }, { "cite": "50 Ill.App. 290", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5123794 ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0290-01" ] }, { "cite": "21 Ill. 200", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2599797 ], "opinion_index": 0, "case_paths": [ "/ill/21/0200-01" ] }, { "cite": "55 Ill.App. 463", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5091625 ], "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-app/55/0463-01" ] }, { "cite": "152 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "18 Ill.App.2d 462", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5186885 ], "weight": 2, "pin_cites": [ { "page": "477" }, { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/18/0462-01" ] }, { "cite": "105 N.Y.S. 2d 178", "category": "reporters:state", "reporter": "N.Y.S.2d", "pin_cites": [ { "page": "181" } ], "opinion_index": 1 }, { "cite": "177 N.E. 746", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "345 Ill. 48", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5263453 ], "pin_cites": [ { "page": "61" } ], "opinion_index": 1, "case_paths": [ "/ill/345/0048-01" ] }, { "cite": "279 N.W. 711", "category": "reporters:state_regional", "reporter": "N.W.", "pin_cites": [ { "page": "712" } ], "opinion_index": 1 }, { "cite": "202 Minn. 610", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 1729687 ], "opinion_index": 1, "case_paths": [ "/minn/202/0610-01" ] }, { "cite": "236 A.2d 831", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1938, "pin_cites": [ { "page": "833" } ], "opinion_index": 1 }, { "cite": "211 Pa. Super. 408", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 781431 ], "year": 1938, "opinion_index": 1, "case_paths": [ "/pa-super/211/0408-01" ] }, { "cite": "72 N.E. 9", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1967, "opinion_index": 1 }, { "cite": "212 Ill. 121", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3310430 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/ill/212/0121-01" ] }, { "cite": "113 Ill.App. 518", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 872835 ], "year": 1904, "pin_cites": [ { "page": "520" } ], "opinion_index": 1, "case_paths": [ "/ill-app/113/0518-01" ] } ], "analysis": { "cardinality": 1015, "char_count": 21892, "ocr_confidence": 0.7, "pagerank": { "raw": 2.789708234915082e-07, "percentile": 0.8359209359310137 }, "sha256": "468bcecc13fe389cffc6c9b7bbdd3cd19835aa82c4f3ae366f5fc99fd2a32f15", "simhash": "1:d42138439fbd8c88", "word_count": 3631 }, "last_updated": "2023-07-14T15:50:56.200740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Urban Investment and Development Co. et al., Plaintiffs-Appellants, v. Maurice L. Rothschild & Co., Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE LEIGHTON\ndelivered the opinion of the court:\nThis appeal is from a judgment entered in two consolidated suits for possession of land filed by the landlords of a tenant to whom they were renting stores in two shopping centers. Notices terminating the tenancies were served on the ground that the tenant\u2019s parent corporation had filed bankruptcy proceedings, an occurrence which the landlords claimed was a default that entitled them to demand surrender of the rented premises. The issue presented is whether the landlords had the right to terminate the leases and thus were entitled to possession of the stores. The facts giving rise to this issue are undisputed.\nFor many years prior to November 4, 1971, Maurice L. Rothschild & Co. was a wholly owned corporate subsidiary of Botany Industries, Inc. Botany was incorporated in Delaware; Rothschild in Illinois. On October 31, 1971, Rothschild executed an \u201cAssignment and Assumption\u201d agreement with Botany which recited that, subject to its right to continue occupying the leased premises, Rothschild \u201cdoes hereby assign to [Botany] all of its right, title and interest as lessee * * *\u201d in eight leases. In one of these, Rothschild was renting a store in the River Oaks Shopping Center, Calumet City, Illinois, from Draper and Kramer, Incorporated. In another, Rothschild was renting a store in the Old Orchard Shopping Center, Skokie, Illinois, from Urban Investment and Development Co.\u2019s predecessor corporation. The River O\u00e1ks lease was to July 31, 1981; the Old Orchard lease, to July 31, 1977. Each lease was nearly identical in form with the other; at Rothschild\u2019s election, they could be assigned to its parent corporation; and each contained an article which provided in part that \u201c* * * if any proceedings shall be commenced to declare Tenant bankrupt or insolvent * * * then Landlord may treat the occurrence * * * as a breach of this lease * 0 V\u2019\nOn the day the \u201cAssignment and Assumption\u201d was executed, Rothschild and Botany entered into another agreement by which the two stores were \u201csubleased\u201d to Rothschild for a period to end on the same dates that the two leases expired. In this agreement, Botany was denominated the \u201cassignee of and tenant\u201d of the premises with power to terminate in the event it received \u201ca bona fide offer to purchase its position as an assignee-tenant * * *\u201d under the leases. Rothschild had the right of first refusal and was guaranteed a release from all liability if terminations should become effective. By the terms of the latter agreement, Rothschild remained bound to the terms of the two leases; it could look only to the landlords for service; and instead of the amounts called for in each lease, it was to pay Botany as rent a sum equal to 5% of its gross sales in each store, payable monthly. Then, on November 4, 1971, Botany sold all the capital stock of Rothschild to Clarence Permut, subject to the agreements of October 31.\nOn April 25, 1972, in the United States District Court for the Eastern District of Pennsylvania, Botany filed proceedings for reorganization under chapter XI of the bankruptcy act. Approximately 2 weeks later, the landlords, Draper and Kramer, Incorporated, and Urban Investment and Development Co.\u2019s predecessor, served notices that, as provided in the bankruptcy provisions in each lease, they were electing to terminate and take possession of the two stores, claiming that the filing of bankruptcy proceedings by Botany was a default under the leases. Accordingly, they demanded that Rothschild surrender the leased premises. Rothschild refused to do so. Thereupon the landlords filed separate suits for possession. Each complaint alleged execution of the leases, the later execution of the \u201cAssignment and Assumption\u201d and \u201cSublease\u201d agreements between Rothschild and Botany, payment of rent by Botany after the agreements, the provision concerning bankruptcy and the filing of bankruptcy reorganization proceedings by Botany. Each complaint alleged that the filing was a violation of the leases and prayed for issuance of a writ of restitution.\nRothschild appeared, answered the complaints and admitted having executed the \u201cAssignment and Assumption\u201d and \u201cSublease\u201d agreements with Botany; it affirmatively alleged that under the leases and after the agreements, it continued to be the tenant; that all the rents had been paid; that Botany did not, at any time, become a tenant of the leased premises; that Botany had filed for reorganization under the Federal bankruptcy act but this fact did not change Rothschild\u2019s status as tenant of the stores because Rothschild was not involved in any bankruptcy proceeding; and that Rothschild was prepared to continue performing all tlie obligations it had undertaken under the terms of the two leases. Then, the parties proceeded with discovery and with motions for summary relief. In the interim, on November 30, 1972, without Rothschild being a party, Botany, in the bankruptcy case, entered into a surrender agreement whereby it agreed to termination of tire leases.\nA short time later, the Rial court entered an order consolidating the two suits filed in the circuit court of Cook County. Following this entry, the Rial court, having heard the parties, found that Rothschild had executed an \u201cAssignment and Assumption\u201d agreement with Botany, as assignee; that by the terms of the leases, Rothschild, not Botany, was the tenant; that Botany had filed for reorganization under chapter XI of the bankruptcy act but Rothschild was not involved in any bankruptcy proceeding; that the provisions in the leases concerning the occurrence of bankruptcy had not become operative; and that with regard to the payment of rent, its noncollection by the landlords was the result of the strategy by which they refused an open-court tender of payment by Rothschild. The trial court concluded that the notices of termination were invalid and that the landlords were not entitled to possession. It is this ruling that gives rise to the issue presented for our review. To resolve the issue, we must first determine the effect of the \u201cAssignment and Assumption\u201d and \u201cSublease\u201d agreements between Rothschild and Botany and then decide who was the tenant of the two stores on April 25, 1972, when Botany filed the bankruptcy reorganization proceedings,\nI.\nThroughout this litigation, Rothschild has contended that the \u201cAssignment and Assumption\u201d and \u201cSublease\u201d agreements it entered into with Botany did not affect its status as the tenant under the leases in question. The landlords, on the other hand, contend that the agreements, together with the sale of Rothschild to Permut, were intended by the parties to make Botany the tenant of the stores as the assignee of the two leases. No findings of fact or conclusions of law concerning these agreements were made or reached by the trial court. It is our opinion, however, that the court construed them sub silentio when it ruled in favor of Rothschild. The essential question in that construction was whether the leases were assigned to Botany.\nA lease is a contract for exclusive possession of lands, tenements or hereditaments for life, for a term of years, or at will, or for any interest less than that of the lessor, usually for a specified rent or compensation. (Illinois Central R.R. Co. v. Michigan Central R.R. Co., 18 Ill.App.2d 462, 477, 152 N.E.2d 627.) A lease possesses the property of passing an estate in land; it partakes of the nature of an estate, and exclusive possession of the leased premises is essential to its character. (Holladay v. Chicago Arc Light & Power Co., 55 Ill.App. 463, 467; compare Alwood v. Ruckman, 21 Ill. 200; R.J. Gunning Co. v. Cusack, 50 Ill.App. 290.) In this case, it is not disputed that on the day of the transaction between the two corporations, Rothschild was in possession of two stores as the tenant for a term of years under written leases.\nWhether a transaction is the assignment of a lease depends on its nature, the language employed, and all the circumstances of the case. (Lemons v. Knox (1951), 72 Ariz. 177, 232 P.2d 383; Dodson v. Mc-Elreath (1950), 210 Miss. 160, 48 S.2d 861; Branmar Theater Co. v. Branmar, Inc. (Del. Ch. 1970), 264 A.2d 526; 51C C.J.S. Landlord & Tenant \u00a7 37(1)a (1968).) And generally, whether the assignment of a lease has actually occurred is a question of law. (Compare Berry v. Blackard Construction Co., 13 Ill.App.3d 768, 300 N.E.2d 627; see Gow v. Buckminster Hotel, Inc. (1958), 336 Mass. 606, 146 N.E.2d 928.) The \u201cAssignment and Assumption\u201d agreement contained words that expressed the concept of assignment and labeled Rothschild the \u201cassigner\u201d and Botany the \u201cassignee.\u201d However, it is well-established that the legal effect to be given an instrument is not determined by the label it bears or the technical terms it contains. Bonde v. Weber, 6 Ill.2d 365, 377, 128 N.E.2d 883; compare Chicago Housing Authority v. United States Fidelity & Guaranty Co., 49 Ill.App.2d 407, 199 N.E.2d 217.\nTherefore, in construing the \u201cAssignment and Assumption\u201d agreement, we are bound by the rule that an assignment of a lease occurs where the lessee transfers the entire unexpired remainder of the term created by his lease. For example, where he assigns his whole estate without reserving to himself a reversionary property interest, a privity of estate is at once created between his transferee and the original lessor, and in such a case, the transfer is an assignment. (Sexton v. Chicago Storage Co., 129 Ill. 318, 326, 21 N.E. 920.) But if he reserves or retains any reversion in the leased premises, however small, the privity of estate between his transferee and the original landlord is not established; and in such a case there is no assignment. (Kratovil, Real Estate Law 337 (5th ed. 1969); 1 Rasch, Landlord & Tenant \u00a7 35 (1950); 1 Tiffany, The Law of Real Property \u00a7 123 (3d ed. 1939); 1 Tiffany, The Law of Landlord & Tenant \u00a7 151 (1910).) It clearly appears in this case that Rothschild, by the terms of the \u201cAssignment and Assumption\u201d agreement, retained interests in the two leases sufficient to preclude any notion that it had assigned its tenancy. It expressly reserved the right to use and occupy the leased premises for the balance of the terms. For these reasons, we conclude that the agreement was not an assignment of the leases. The \u201cSublease\u201d from Botany did nothing more than confirm the reversions, although a different rent was to be paid. (See Taylor v. Marshall, 255 Ill. 545, 99 N.E. 638.) As a result, at the conclusion of the agreements of October 31, 1971, Rothschild continued in possession of the lands described in the leases.\nII.\nIn the broadest sense, one who holds or possesses lands or tenements by any kind of right or title, whether in fee, for life, for years, at will or otherwise, is a tenant. (Hosford v. Ballard (1868), 39 N.Y. 147, 151; Caldwell v. Thiessen (1939), 60 Idaho 515, 92 P.2d 1047.) Therefore, a tenant is anyone who lawfully occupies or has temporary possession of land whose title is in another. (Insurance Co. v. O\u2019Connell, 34 Ill.App. 357, 361; I.L.P. Landlord and Tenant \u00a7 2 (1956).) He is one who has the temporary use and occupancy of real property owned by another person, called the landlord, with the relation, duration and terms of the tenancy usually fixed by an instrument called a lease. See 51C C.J.S. Landlord br Tenant \u00a7 1 (1968); Black\u2019s Law Dictionary 1635 (rev. 4th ed. 1951).\nPossession and occupancy are essential for the relation. If a lessee under a written lease does not go into possession of the leased premises, the relation of landlord and tenant does not arise; the relation is that of lessor and lessee. (Simon v. Kirkpatrick (1927), 141 S.C. 251, 256, 139 S.E. 614, 616; Bunch v. Elizabeth City Lumber Co. (1903), 134 N. C. 116, 118, 46 S. E. 24, 25.) Where two parties agree to a lease of an estate for years to begin at a future date but entry is not made, the lessee has what the old authorities spoke of as an interesse termini; that is, the lessee is in a position where only entry is necessary to turn him into a full fledged tenant for years. 2 Powell, The Law of Real Property \u00a7 223 (1973).\nFrom these sources of the law, we see that in common parlance a tenancy arises or one becomes a tenant when he enters into the use, possession, or occupation of land belonging to another. (See Illinois Central R.R. Co. v. Michigan Central R.R. Co., 18 Ill.App.2d 462, 477, 152 N.E.2d 627; Friend v. Gem International, Inc. (Mo. App. 1971), 476 S.W.2d 134, 137-38.) In the record before us, it is not claimed that at any time Botany had possession of the leased premises or had a right to possession that was superior to Rothschild\u2019s. For this reason we conclude, as did the trial judge, that on April 25, 1972, when Botany filed for reorganization under the bankruptcy act, Rothschild was the tenant under the two leases. It was not involved in any bankruptcy; the provisions of the leases concerning bankruptcy proceedings could not be made applicable to Rothschild. Therefore, the trial court correctly ruled that the notices of termination served by the landlords were invalid. We agree with the trial court that, under the circumstances shown in the record, the landlords could not terminate the leases for non-payment of rent. (See Madison v. Rosser, 3 Ill.App.3d 851, 279 N.E.2d 375.) The judgment is affirmed.\nAffirmed.\nSTAMOS, J., concurs.\nDuring the pendency of the suits, the landlords refused to accept rent from Rothschild on two occasions, June 6, 1972, and June 26, 1972. On November 30, 1972, however, they indicated a willingness to accept rent for the months of May thru December 1972. On December 8, 1972, the landlords again refused to accept rent from Rothschild as tenant. On that day, the trial judge ordered the rent paid into an escrow account; and after judgment was entered for Rothschild, the accumulated rents were paid to the landlords.\nPrior to the trial of the case, the Almalgamated Clothing Workers of America, Chicago Joint Board, a union that represented Rothschild\u2019s employees, was permitted, on its motion, to appear amicus curiae and submit an affidavit in support of Rothschild\u2019s opposition to the landlord\u2019s efforts to evict it from the two stores. The union is not a party to this appeal.\nIt is for this reason that the \u201cSurrender Agreement\u201d executed by Botany was ineffectual as it related to the premises here in issue. A surrender is the yielding up of an estate so that the leasehold interest becomes extinct by mutual agreement. (Johnson v. Northern Trust Co., 265 Ill. 263, 270, 106 N.E. 814; Peirce v. Conant, 47 Ill.App.2d 294, 301, 198 N.E.2d 555.) Absent possession or a superior right thereto, Botany was without the interest in property necessary to effect the purported surrender.\nAn examination of the cases cited by the parties, as well as those produced by our research, reveals that the question implicit in this case is a novel one. (See Stamm v. Buchanan (1951), 55 N.M. 127, 132, 227 P.2d 633, 636; Waukegan Times Theatre Corp. v. Conrad, 324 Ill.App. 622, 59 N.E.2d 308.) The factor common in all of the cases we have examined is that the party whose bankruptcy is asserted to support the claim of forfeiture actually occupied the premises at some time. In the cases upholding forfeiture, the party occupied the premises at the time of the bankrupty. See Model Dairy Co. v. Foltis-Fisher, Inc. (2d Cir. 1933), 67 F.2d 704; In re Famous Fain Co. (2d Cir. 1926), 13 F.2d 529; Empress Theatre Co. v. Horton (8th Cir. 1920), 266 F. 657; In re Lindy-Friedman Clothing Co. (N. D. Ala. 1921), 275 F.453.", "type": "majority", "author": "Mr. JUSTICE LEIGHTON" }, { "text": "Mr. JUSTICE HAYES,\nspecially concurring:\nI concur in the result, but I wish to express the line of reasoning by which I reach that result.\nAn essential element of tenancy is that, as between landlord and tenant, the tenant is either in lawful actual possession of the leased premises (whether personally or through a sub-tenant) with the landlord\u2019s assent and in subordination to tire landlord\u2019s title, or he has the legal right to the immediate possession of the said premises by the landlord\u2019s assent and in subordination to the landlord\u2019s title. Wood, A Treatise on the Law of Landlord & Tenant \u00a7 1 (1881); Taylor, The American Law of Landlord & Tenant \u00a7 14 (9th ed. 1904); Merki v. Merki (1904), 113 Ill.App. 518, 520, aff'd (1904), 212 Ill. 121, 72 N.E. 9; Lasher v. Redevelopment Authority (1967), 211 Pa. Super. 408, 236 A.2d 831, 833; Gates v. Herberger (1938), 202 Minn. 610, 279 N.W. 711, 712.\nIn the instant case, the \u201cassignment\u201d of the assignor\u2019s leasehold estate under each of the two prime leases contained the following relevant sentences:\n\u201cAssignor does hereby assign to Assignee all of the Assignor\u2019s right, title and interest as lessee in the following leases subject to Assignor\u2019s right to occupy the premises demised thereunder. Assignee does hereby accept and assume and agree to observe and perform all of the terms, covenants and condition of the [said] Leases 8 8 8 on the lessee\u2019s or tenant\u2019s part to be performed thereunder subject to the rights of Assignor to occupancy under the Leases 8 8 8.\u201d\nIt is conceded that the estate purported to be transferred was to endure for the entire remaining balance of the term of each prime lease.\nOur supreme court has had occasion to define the phrase \u201csubject to\u201d as meaning \u201csubordinate to,\u201d \u201csubservient to,\u201d or \u201climited by.\u201d (Engle stein v. Mintz (1931), 345 Ill. 48, 61, 177 N.E. 746.) Hence, in a transfer of property rights in which the transferor expressly makes the transfer \u201csubject to\u201d the continuation in himself of one of his then existing rights in and to the premises, the phrase \u201csubject to\u201d operates as a reservation of the said right by the transferor. (Dagrosa v. Calabro (Sup. Ct. 1951), 105 N.Y.S. 2d 178, 181.) In the words of our supreme court, the instant transfer was expressly made \u201csubordinate to,\u201d and is expressly \u201climited by,\u201d the continuation of the said right in the transferor for the entire remaining balance of the term of the prime lease. We note further that, in the instant cage, not only did the assignor expressly make the transfer \u201csubject to\u201d the continuation in itself of the right of occupancy which it tiren held under the respective prime leases, but the \u201cAssignee\u201d also expressly accepted the transfer \u201csubject to\u201d the continuation in the \u201cAssignor\u201d of the said right under the prime leases. Under the language of the \u201cassignment,\u201d therefore, it is clear that the assignors right to occupy the leased premises derived, not from the assignee, but from the landlord by and through the prime leases.\nUnder the terms of a companion instrument by and between Rothschild and Botany (which the parties designated a \u201csublease\u201d), Botany promised Rothschild that Botany would pay the rent reserved under the prime lease to the landlord therein, and Rothschild promised to pay a different rent to Botany. Rothschild also agreed that Botany was to have the power to terminate Rothschild\u2019s occupancy in either of two specified events, neither of which ever occurred. It is significant that this \u201csublease\u201d did not purport to transfer any right of or to occupancy from Botany to Rothschild. When the companion instruments are read together, they confirm each other in establishing that the parties intended Rothschild\u2019s right to occupy the leased premises to be, and to continue to be, the right to occupancy which Rothschild then had under the prime lease involved. Even assuming, without deciding, that the \u201csublease\u201d created a power in Botany to terminate- Rothschild\u2019s occupancy, that power is irrelevant to the continuation of the landlord-tenant relationship between Rothschild and its landlord under the prime leases, since the power never became exercisable.\nFor the purposes of this case, I do not think it necessaiy to decide what property rights, if any, were transferred to or created in Botany and were subsequently \u201creleased\u201d by Botany to the landlords under the prime leases. It suffices that the reserved right derived from the prime lease is the very right which is the essence of tenancy: the actual possession of the leased premises with the assent of the landlord and subject to his ownership right. Assignor Rothschild expressly reseived its right to occupancy of the premises, which was one of the rights it then had as against the landlord under the respective prime leases; and assignee Botany accepted the transfer subject to the right of assignor Rothschild to occupancy under the respective prime leases. Hence, under the terms of the assignment, assignee Botany never was in actual possession of the leased premises. Nor did it ever have, as against either the landlord or Rothschild, the right to the immediate possession of the leased premises. For that reason, assignee Botany never became the tenant under the prime leases.\nConversely, assignor Rothschild was, and was to continue to be, in actual possession of the leased premises under the right to occupy them which it then held under the prime lease, and, as against both the landlord and Botany, had and was to continue to have the right to immediate possession of the said premises for tire entire remaining balance of the term of the respective prime leases. Hence, Rothschild remained the tenant under the prime leases. Since it is conceded that Rothschild never went into bankruptcy, the respective landlord\u2019s power to terminate the prime lease in that event never became exercisable.", "type": "concurrence", "author": "Mr. JUSTICE HAYES," } ], "attorneys": [ "Overton, Schwartz & Yacker, Ltd., of Chicago, for appellants.", "Sydney B. Wexler, Warren L. Swanson, and David A. Lowe, all of Chicago, for appellee." ], "corrections": "", "head_matter": "Urban Investment and Development Co. et al., Plaintiffs-Appellants, v. Maurice L. Rothschild & Co., Defendant-Appellee.\n(No. 59061;\nFirst District (2nd Division)\nJanuary 10, 1975.\nHAYES, J., specially concurring.\nOverton, Schwartz & Yacker, Ltd., of Chicago, for appellants.\nSydney B. Wexler, Warren L. Swanson, and David A. Lowe, all of Chicago, for appellee." }, "file_name": "0546-01", "first_page_order": 570, "last_page_order": 579 }