{ "id": 2533867, "name": "Sabatino Baragiano v. Pasquale Villani", "name_abbreviation": "Baragiano v. Villani", "decision_date": "1904-12-15", "docket_number": "Gen. No. 11,646", "first_page": "372", "last_page": "376", "citations": [ { "type": "official", "cite": "117 Ill. App. 372" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "33 Wis. 228", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8706926 ], "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/wis/33/0228-01" ] }, { "cite": "66 N. Y. 37", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2163531 ], "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ny/66/0037-01" ] }, { "cite": "64 N. Y. 80", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": 0 } ], "analysis": { "cardinality": 429, "char_count": 8023, "ocr_confidence": 0.555, "pagerank": { "raw": 2.1207934434977133e-07, "percentile": 0.7645019072540523 }, "sha256": "86ba95052a157310536f091596a18dee54b0ec14414bac055276767fcab8ace2", "simhash": "1:0fc466cdbe233d94", "word_count": 1385 }, "last_updated": "2023-07-14T15:16:02.267508+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sabatino Baragiano v. Pasquale Villani." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nThis is an appeal from a judgment in forcible detainer by appellee against appellant. The suit was commenced by appellee May 29,1903, before a justice of the peace, and June 5,1903, judgment was rendered by the justice in favor of appellee, and appellant appealed to the Superior Court. The cause was tried by\" the court, a jury being waived, and the court found for appellee and rendered judgment accordingly.\nIt appears from the evidence that May 1, 1901, Mary Meiselbar leased to appellant from that date until April 30, 1902, \u201c the entire two-story and basement frame house, consisting of twelve rooms and known as Mo. 351 South Jefferson street, in the city of Chicago.\u201d Mary Meiselbar executed to appellant another lease of the same premises, of date May 1, 1902, for a term from that date till April 30, 1905. Endorsed on the latter lease is the following:\n\u201c Chicago, April 23, 1902.\nIn consideration of the premises, it is understood and agreed between the parties to the within lease, that the term of this lease may be terminated at the option of the first party, at any time hereafter, on giving thirty days\u2019 notice, in writing, to any person in possession of the same, in case of sale or descent.\nMary Meiselbar, Sabatino Baragiano.\u201d\nMay 29, 1903, Mary Meiselbar conveyed' the demised premises, by warranty deed, to appellee. It is recited in the deed that it \u201c is made in fulfillment of agreement between the parties hereto, dated April 28, 1903.\u201d The following was put in evidence:\n\u201c Chicago, April 23, 1903..\nTo Sabatino Baragiano :\nYou are hereby notified that I this day declare my option to cancel and terminate the lease now held by you, dated the 1st day of May, 1902, to the property therein described as follows, to-wit: The entire two-story and basement frame house, consisting of 12 rooms, and known as Mo. 351 South Jefferson street, in the city of Chicago, together with all the appurtenances thereunto belonging, in the City of Chicago, Cook County, and State of Illinois, in thirty days.\nThis option-is declared under and by virtue of the agreement endorsed on the aforesaid lease, and its provisions therefor. Mary Meiselbar,\nBy B. H. Melang,\nAttorney.\u201d\nAnnexed to this notice is an affidavit of B. H. Melang that he served the notice on Sabatino Baragiano, by delivering to and leaving with her the notice. Appellee, relying on the endorsed agreement and the foregoing notice, brought suit against appellant for forcible detainer. The question is, whether appellee can maintain the action.\nAppellant testified that he cannot read or write, and that he knew nothing of the agreement endorsed on the lease providing for a termination of the tenancy. Mrs. Baragiano testified that she signed appellant\u2019s name to the endorsed agreement, and that appellant, her husband, did not, at any time, know that she so signed his name; that he was absent at work when she signed it. Melang, appellee\u2019s witness, testified that he and Mrs. Meiselbar went to the demised premises together, and that he saw Mrs. Baragiano sign the endorsed agreement, and that appellant was not then on the premises. The foregoing evidence is uncontradicted, and the circumstances are corroborative of it. The second lease runs from May 1, 1902, to April 30, 1903. The term had not commenced April 23, 1902, when the endorsed agreement is .dated, and when appellee\u2019s own witness, Melang, testified it was made, and it seems inconsistent, at least, to suppose that appellant would, before his term commenced, make an agreement by which appellee might, on the first day of the term, give him a notice terminating the term in thirty days. But no sufficient notice was given of the termination of the terra. It seems hardly necessary to say that Melang\u2019s affidavit was no evidence of service of the notice.\nMelang, called as a witness by appellee, testified that he served the notice on a lady on the premises, who said she was Mrs. Baragiano; that he supposed she was Sabatino Baragiano. In other words,, that he supposed that a woman, with a woman\u2019s name, was a man. He also testified that he knew the defendant, Sabatino Baragiano, and that he did not serve the notice on him. Appellant also testified that the notice was not served on him, and his wife testified it was not served on her. It' appears from the testimony of appellee that appellant\u2019s mother was living on the premises, and the notice may have been served on her.\nThe endorsed agreement provides for \u201c notice in writing, to any person in possession of same, in case of sale or descent.\u201d The evidence shows that appellant was in possession, and appellee, by bringing the action against appellant, impliedly admits that he was in possession. If the fact is that he was not, then the'action was wrongly brought, because it must be brought against the party in possession. The word \u201cpossession\u201d does not include a person or persons who merely happen to be on the premises at the time of service of the notice, as, for instance, a lodger or one temporarily there. \u201c Possession. The detention or enjoyment of a thing which a man holds or exercises by himself, or by another who keeps or exercises it in his name.\u201d Bouvier\u2019s Law Dictionary. \u201c Possession means simply the owning or having a thing in one\u2019s power. It may be actual, or it may be constructive.\u201d Brown v. Volkenberg, 64 N. Y. 80. \u201c It implies a present right to deal with the property at pleasure and to exclude other persons from meddling with it.\u201d Sullivan v. Sullivan, 66 N. Y. 37, 41. \u201c Possession is one degree of title, although the lowest. It is such an interest in land that one who has only the bare possession may maintain ejectment against a mere wrongdoer, who has intruded into ' the possession.\u201d Swift v. Agnes, 33 Wis. 228, 240. It was intimated by the court on the trial that the lease being under seal, Mrs. Baragiano could not legally sign her husband\u2019s name to it, unless authorized thereto by an instrument of equal dignity; also that the lease might be regarded as her lease taken in her husband\u2019s name, and, indeed, the case seems to have been decided on the latter hypothesis. It was not necessary to the validity of the lease, or to its being binding on appellant, that he should sign it. A lease for years takes effect from delivery and entry into possession of the demised premises by the lessee. Taylor on Landlord and Tenant, sec. 68: It is no more necessary for a lessee to sign the lease, which is a mere conveyance of an estate carved out of the fee, than it is for the grantee in a conveyance in fee to sign the deed, in order to be bound by its terms.\nThe lease cannot be deemed a lease to Mrs. Baragiano. It runs, in terms, to Sabatino Baragiano, and he testified that the lease was to him. Moreover, he is the party sued, and \"complained against, as wrongfully withholding the possession!\nThe judgment will, be reversed.\nReversed.", "type": "majority", "author": "Mr. Justice Adams" } ], "attorneys": [ "Simeon Armstrong, for appellant.", "Ho appearance for appellee." ], "corrections": "", "head_matter": "Sabatino Baragiano v. Pasquale Villani.\nGen. No. 11,646.\n1. Service of notice\u2014when, not established. Where a lease provides for termination thereof upon service of a particular notice to \u201cany person in possession,\u201d service upon a person found upon the premises other than the lessee is not such a service as is contemplated by the lease.\n2. Possession\u2014who not deemed in, for the purpose of maintaining forcible detainer. Possession by a person who merely happens to be on . the premises, as for instance, a mere lodger, is not such a possession as will authorize the maintenance of forcible detainer.\n3. Lease\u2014effect of lessee\u2019s failure to sign. It is no more necessary for a lessee to sign a lease in order that the same may become a binding obligation than it is for the grantee of a conveyance in fee to sign the deed.\nForcible detainer proceeding. Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in this court at the March term, 1904.\nReversed.\nOpinion filed December 15, 1904.\nSimeon Armstrong, for appellant.\nHo appearance for appellee." }, "file_name": "0372-01", "first_page_order": 388, "last_page_order": 392 }