#### FitzAllan Woodbury v. H. H. Ryel, Executor.

Gen. No. 12,699.

1. Forcible entry and detainer—what issue involved in. In an action of forcible entry and detainer the whole question is, does the defendant unlawfully withhold possession of the premises sought to be recovered in the action.

2. Forcible entry and detainer—estoppel to enforce judgment in. Receipt of rent covering a period of time subsequent to the entry of the judgment, operates to restore the relationship of landlord and tenant and to estop the plaintiff in the action from enforcing the judgment rendered therein.

Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. John L. Healy, Judge, presiding. Heard in this court at the October term, 1905.

Affirmed.

Opinion filed October 8, 1906.

W. H. Richardson, for appellant.

Peckham, Smith, Packard & ApMadoc, for appellee.

Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court in an action of forcible detainer tried in that *460court on an appeal from a like judgment of á justice of the peace. Both the justice and Circuit Court judgments are in favor of appellee. To reverse the Circuit Court judgment this appeal is prosecuted.

The facts show that Woodbury entered premises involved as tenant under a written lease from appellee for a term commencing August 1, 1904, and ending April 30, 1905, at the monthly rental of $32.50, and that on February 27, 1905, appellee recovered a judgment in an action of forcible detainer against appellant for possession and that no writ of restitution was ever executed on this judgment, though one was issued. Appellant continued in possession, notwithstanding the judgment, and on March 10, 1905, paid rent at the rate stipulated in the lease, including the month of February, and $6 on March rent. This was the last rent paid. On April 8, 1905, appellee caused a five days’ notice to be served upon appellant claiming $59 due as rent and notifying appellant that unless the same was paid on the thirteenth day of that month the lease would be terminated. A complaint in forcible detainer in the usual form was on May 3, 1905, filed before the justice on the expressed ground “that the lease expired April 30,1905.”

The contentions of appellant are that the first forcible detainer judgment terminated the written lease, and second, that there is a variance between the notice and complaint which, under the proofs, does not warrant a recovery in the present-case.

The whole question .in actions of this nature is, does the defendant unlawfully withhold possession of the premises sought .to be recovered in the action? The lease under which a defendant may have entered, sheds no light on the question whether at the time of commencing the forcible detainer action he was wrongfully withholding possession. If appellant was wrongfully withholding possession on February 27, 1905, when the first judgment was obtained, that fact does *461not of itself refute the charge that on May third following he was still wrongfully withholding possession. It is' evident from the actions of the parties that they intended to disregard the first forcible detainer proceedings and restore their previous status as landlord and tenant and revive the lease. This conclusion finds ample warrant by the payment by appellant and acceptance by. appellee of rent due in accordance with the rate fixed by the lease on March tenth following. Receipt of rent, covering a period of time subsequent to the entry of the judgment, undoubtedly operated to restore the relationship of landlord and tenant and to estop an enforcement of that judgment by dispossessing appellant under a writ of restitution in that case, so that at the time of instituting this suit it is obvious that the parties sustained to each other the relation of landlord and. tenant. The complaint complies with the statute, section 5, chapter 57, and is sufficient. Martens v. Fields, 17 Ill. App. 483. It was unnecessary to state the circumstances of the entry, and the words “whose lease of said premises expired April 30, 1905,” may be disregarded as surplusage. Under the rulings in Harms v. Stier, 70 Ill. App. 213, all that was incumbent upon appellee was to make proof of such facts as, under either one of the six subdivisions of section 2, chapter 57, R. S., constitute a wrongful withholding of possession. If appellant’s original lease had expired—as he claims—his continued possession thereafter was wrongful. If he was indebted in the sum of $59 for unpaid rent, at the time of service of the five days’ notice, then his possession was wrongful after April thirteenth, the time limited in the notice for its payment.

We are unable to discover any reversible error in this record, and the judgment of the Circuit Court is affirmed.

Affirmed.