#### J. J. Sankstone v. Louise Moody.

Gen. No. 13,319.

Landlord and tenant—when five days’ notice not served as provided by statute. Held, that the service of a five days’ notice upon a person not the tenant, nor one even temporarily residing upon the premises involved in the notice, is not sufficient.

Forcible entry and detainer. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1906.

Rd versed and remanded.

Opinion filed October 18, 1907.

F. C. Struckme,yeb., for appellant.

Cheney & Evans, for appellee.

Mr. Justice Freeman

delivered the opinion of the court.

This is an action of forcible entry and detainer appealed to the Circuit Court from the judgment of a justice of the peace. The premises involved are described as the first apartment of an apartment building at 2207 West Van Burén street, Chicago.

The only question to he determined is whether the five-day notice to appellant provided for by the statute was served as therein required. The statute provides that “any demand may he made or notice served by delivering a written or printed or partly written and printed copy thereof to the tenant or by leaving the same with some person above the age of twelve years residing on or being in possession of said premises.” In the present case the notice was handed to a man who lived in the basement of the building and did work for the various tenants and others, who it is contended was neither residing on nor in possession of the premises. The service as sworn to on the hack of the notice is to the effect that the affiant “served the within notice by delivering a copy thereof” to the tenant “by leaving the same with Mr. Isaac Mercer, a person above the age of twelve years residing on or being in charge of the premises, by posting the same on *620the premises, no person being in actual possession thereof.” The affiant was a witness at the trial and testified that he rang the bell and knocked at the door; that no one answered and he went around to the first porch in the rear; that Mercer, “an elderly gentleman,” came out, who in response to questions said he was not Mr. Sankstone, that Mrs. Sank-stone had gone to the grocery, that no one of the family was at home, and in reply to the question, “Anybody got charge or possession?” answered, “Why, I take care of the building.” The notice was then given Mercer and he was told to deliver it to Sankstone. The witness says he promised to do so. On cross-examination the witness stated that Mercer “must have been in the rear part of the building. I don’t know where he was.” It appears that Mercer, a man of over sixty-six years of age, lived in the basement of the apartment building and went out to work doing odd jobs for persons in the building and elsewhere, bringing up coal, carrying out ashes, washing dishes, cleaning the kitchen floors, not working exclusively for appellant nor apparently for any of the tenants. He testifies that he does not remember service of any notice and that he did not have charge or possession of the appellant’s flat on or about the time when the notice is alleged to have been served. There is no evidence tending to show that he did. He was clearly not residing on the premises occupied by appellant as a tenant and described in the lease and notice in question. It does not appear what he was doing there at the time, nor that he was in possession of the leased premises in any sense. It is urged that appellee’s evidence standing alone would support the verdict in her favor, and that the verdict must he regarded as decisive of any conflict in the evidence. But appellee’s evidence does not, we think, support the verdict. Possession of real property is defined to be “that possession or relation which one occupies with respect to a particular piece of land which gives to him its use and control and excludes all others from a like use or control.” Ft. Dearborn Lodge v. Klein, 115 Ill., 177-183. It is said in that case that “one may be in occupancy of land as a mere squatter without any *621pretense of claim, when in contemplation of law even the possession is in another.” In the present case it does not appear that. Mercer was even in temporary occupancy of the premises in controversy. It was said in Baragiano v. Villani, 117 Ill. App., 372-375, in a forcible entry and detainer case that “the word 'possession’ 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.” The service of notice was insufficient to sustain the verdict and judgment. The judgment must therefore be reversed and the cause remanded.

Reversed and remanded.