{ "id": 2713513, "name": "John W. Carter v. James P. Marshall", "name_abbreviation": "Carter v. Marshall", "decision_date": "1874-06", "docket_number": "", "first_page": "609", "last_page": "611", "citations": [ { "type": "official", "cite": "72 Ill. 609" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "20 Penn. 60", "category": "reporters:state", "reporter": "Penn.", "opinion_index": 0 }, { "cite": "3 Scam. 32", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2472093 ], "opinion_index": 0, "case_paths": [ "/ill/4/0032-01" ] } ], "analysis": { "cardinality": 322, "char_count": 6265, "ocr_confidence": 0.49, "pagerank": { "raw": 3.839259246454599e-07, "percentile": 0.8991468228456563 }, "sha256": "741ac3b4dc41db4c059da0e2ce8f0df5b7560e99e7515303303edb17aab2010a", "simhash": "1:1b11118a27e5fe01", "word_count": 1105 }, "last_updated": "2023-07-14T19:43:15.201732+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John W. Carter v. James P. Marshall." ], "opinions": [ { "text": "Mr. Justice Scott\ndelivered the opinion of the Court:\nAppellee claims to be the landlord of appellant, and this litigation is induced by an effort, on the part of the alleged tenant, to resist the claim asserted, by showing that he is the tenant of the Emporium Heal Estate and Manufacturing Company. The property in controversy is the Mound City Eailroad, its rolling stock and franchises.\nAppellee, as trustee for the bondholders, executed a lease on this property to Hiram Boren, who, it is alleged, assigned it to appellant. The principal controversy is, whether the assignment on the lease was made with appellant\u2019s consent, or whether he ever accepted it. He had previously been in possession of the road under a verbal lease from the Emporium Company.\nThe evidence on this material point, viz: the assignment and acceptance of the lease, is flatly contradictory. The orig- \u201e inal lessee, Boren, has since died. He had given his testimony on a former trial between the parties, on the question of the assignment of the lease to appellant. That testimony was all- - important in the present trial. Witnesses who heard it, gave the substance of his testimony according to the best of their recollection.\nThe court, at the instance of appellee, instructed the jury, that if they \u201c believed, from the evidence, that Hiram Boren is dead, and that he was a witness in this cause at a former trial, then it is proper for the plaintiff to show, by a witness who was present and heard his evidence at such former trial, what that evidence was; and the jury should consider the facts sworn to by such witness as the evidence of Hiram Boren, and give it the same weight that you would if he was living, and had given the same state of facts in evidence before you.\u201d\nThis instruction is fatally erroneous in assuming that the witnesses who undertook to state the former testimony of Boren gave it accurately. That was the province of the jury to determine, and it was error in the court to interfere. If it appeared, clearly, from the testimony, that the Boren lease had been assigned to appellant, and had been accepted by him, we might say the charge had worked appellant no injury. Without intending to intimate any opinion as to the weight of the evidence, we may be permitted to say this instruction may have misled the jury on this all-controlling point in the case. The court, no doubt, intended only to say to the jury, that if they believed, from the evidence, that the witnesses had given the substance of the testimony of Boren on the former trial accurately, according to the best of their recollection, then it was to be received and considered as other evidence in the case. But the court did vastly more. It charged them that they must \u201c consider the facts sworn to * * as the evidence of Hiram Boren.\u201d This it had no right to do.\nIt is insisted no recovery can be had, in any event, unless it is shown that appellee or Boren had possession at the date of the alleged assignment of the lease, and such possession was transmitted to appellant.\nIt is an undeniable proposition, that where a party in possession of premises accepts a lease and occupies under it, he is estopped to deny his landlord\u2019s title. Ho dispute as to the title will be tolerated, until the parties are placed in their original positions. The exception to the general rule is, where the tenant has been induced by fraud, artifice or mistake to accept the lease. In such case, he may show better title in himself or in any third party under whom he claims. He will be permitted to avoid the lease by proof of such facts as would warrant relief in equity from any other obligation created by deed. It makes no difference, the party may have been in possession as the tenant of a former landlord\u2014he is precluded from denying the title of either. Dunbar v. Bonesteel, 3 Scam. 32; Isaac v. Clark, 2 Grill, (Ma.) 1; Magee v. The Society of U. B. 20 Penn. 60; Miller v. Ronsodon, 9 Ala. (N. S.) 317.\nThe instructions given for appellee on this question, present the law with sufficient accuracy, and may be given again on another trial. Those asked by appellant on the same point were properly refused.\nThe other errors complained of are of trivial importance, and may be readily corrected without any suggestion from this court.\nFor the error indicated, the judgment will be reversed and the cause remanded.\nJudgment reversed.", "type": "majority", "author": "Mr. Justice Scott" } ], "attorneys": [ "Messrs. Green & Gilbert, and Mr. Samuel P. Wheeler, for the appellant.", "Messrs. Linegar & Lansden, for the appellee." ], "corrections": "", "head_matter": "John W. Carter v. James P. Marshall.\n1. Law and fact\u2014whether testimony of a deceased witness, on a former trial, is accurately stated. Where a witness who had testified on a former trial of a case was dead at the time of a subsequent trial, and witnesses who heard his testimony on the former trial gave the substance of it according to the best of their recollection, it was improper for the court to instruct the jury to treat the evidence of such witnesses as the testimony of the deceased witness, and to give it the same weight they would if he was living, and had given the same state of facts in evidence before them. Such an instruction assumes that the witnesses who undertook to state the former testimony gave it accurately, whilst it was the province of the jury to determine that fact.\n2. Landlord and tenant\u2014tenant can not deny landlord\u2019s title. Where' a party in possession of premises accepts a lease, and occupies under it, lie is estopped to deny his landlord\u2019s title, until the parties are placed in their original positions, and it makes no difference that the tenant may have been in possession as the tenant of a former landlord\u2014he is precluded from denying the title of either.\n3. Same\u2014when tenant may dispute landlord\u2019s title. The exception to the general rule preventing a tenant from denying his landlord\u2019s title is, where he has been induced by artifice, fraud or mistake to accept the lease. In such case, he may show better title in himself, or in any third party under whom he claims. He will be permitted to avoid the lease by proof of such facts as would warrant relief in equity from any other obligation created by deed.\nAppeal from the Circuit Court of Alexander comity; the Hon. David J. Baker, Judge, presiding.\nMessrs. Green & Gilbert, and Mr. Samuel P. Wheeler, for the appellant.\nMessrs. Linegar & Lansden, for the appellee." }, "file_name": "0609-01", "first_page_order": 609, "last_page_order": 611 }