#### Elizabeth Mueller, Impleaded, etc., v. William Kuhn.

Landlord and Tenant—Trespass—Talcing Possession after Termination of Lease.

An action of trespass guare clausum fregit can not be maintained against the owner of premises, having the right of possession, who merely takes possession of what is his own.

[Opinion filed December 14, 1892.]

Appeal from the Circuit Court of Cook County; the Hon. Eichard S. Tuthill, Judge, presiding.

Mr. Christian Meier, for appellant.

Messrs. Matz & Fisher, for appellee.

Mr. Justice Shepard.

This was an action in trespass for assault upon plaintiff’s (appellee’s) wife, and for carrying away and converting certain goods and chattels of plaintiff, and for entering.into, and expelling plaintiff from certain premises leased by appellant to appellee.

The lease in question, from appellant to appellee, provided *497that if .the rent reserved, should be unpaid on the day of payment whereon the same ought to be paid, as stipulated, it should be lawful for appellant, at her election, to declare the term ended, and into the said premises, with or without process of law, to re-enter.

“ And if at any time said term shall be ended at such election of said party of the first part, her heirs, executors, administrators or assigns, as aforesaid, or in any other way, the said party of the second part, his executors, administrators and assigns, do hereby covenant and agree to surrender and deliver up the said above described premises and property peaceably to said party of the first part, her heirs, executors, administrators or assigns, immediately upon the determination of the said term, as aforesaid, and if he shall remain in possession of the same one day after such default, or after the termination of this lease, in any of the ways above named, he shall be deemed guilty of a forcible detainer of said premises under the statute, and shall be subject to all the conditions and provisions above named, and to conviction and removal, forcibly or otherwise, or without process of law, as above stated. And the said party of the second part hereby waives his right to any notice from said party of the first part of her election to declare this lease at an end, under any of its provisions, or any demand for the payment of rent or the possession of the premises leased herein; but the simple fact of the non-payment of the rent reserved shall constitute a forcible detainer as aforesaid.”

Default was made in the payment of at least one installment of rent, and appellant, through her agents, took -possession of the premises at a time when the appellee was on the outside, by removing the old lock to the door, and putting on a new one and fastening it.

It is not necessary to speak further of the facts, and we refrain from so doing.

The first and sixth of plaintiff’s instructions given to the jury were so erroneous in stating the law applicable to the case, as to demand a reversal for error in them alone. Those instructions were as follows:

*4981. “ The court instructs the jury that if the jury believe from the evidence that the plaintiff was in the actual possession of the meat market and dwelling apartments in question, and occupied the same, and the defendants, or any of them, forcibly and against his will, entered the same, the defendants or defendant so entering the same committed a trespass. . -

6. “ The court instructs the jury that if they believe from the evidence that any of the defendants forcibly and against the will of the plaintiff entered the premises of the plaintiff, or authorized their entry, said defendant or defendants were not justified in so entering the premises in question, or authorizing their entry, even though you should believe from the evidence that the plaintiff was behind in his rent. . The law provides a method by which the landlord can recover possession of premises peaceably, where a tenant is behind in his rent, and the landlord is not authorized to forcibly enter and take possession of the tenant’s premises, or authorize any one else to do so before the expiration of the lease, and against the will of the tenant.”

The principal vice in each of the instructions consists in the assumption of the first, and the expression of the sixth, that a landlord may not re-enter and retake possession of his premises withheld by a tenant in possession after the determination of a lease, except by process of law.

It would put an end to the enjoyment of property to hold that trespass guare clausum, fregit could be maintained against the- owner, with right of possession, who merely takes possession of what is his own. Hoots v. Graham, 23 Ill. 81; Ostatag v. Taylor, 44 Ill. App. 469; Frazier v. Caruthers, 44 Ill. App. 61; Eichengreen v. Appell, 44 Ill. App. 19, and cases there cited; Brooke v. O’Boyle, 27 Ill. App. 384; Fort Dearborn Lodge v. Klein, 115 Ill. 177.

The jury ought not to have been instructed that the appellant committed a trespass in making an entry into her own premises, even though it was done against the will of the tenant in possession, after the right to possession thereof by the tenant had ceased, by a lawful -termination of the lease. *499We can not say for which of the. alleged trespasses it was that the jury found the defendant guilty, or whether it was not because of all.

It was within the power of the appellee to have had that question determined by special findings of fact by the jury, but he did not choose to do so, and we are unable to say but that the entire damages given were for the alleged breaking and entering into the premises.

It is our duty, therefore, for the errors indicated, to reverse the judgment of the Circuit Court and remand the cause.

Iteversed and rema/nded.