Rand, McNally & Co. v. Francis , 168 Ill. 444 ( 1897 )

Mr. Chief Justice Phillips

delivered the opinion of the court:

Where an assignment is made by an insolvent debtor and the property taken possession of by the assignee before the levy of any distress warrant by the landlord for rent, the assignee will take the property free and clear of any prior lien by the landlord for unpaid rent. The landlord stands in the same position as any ordinary creditor, and will only be entitled to receive payment for such unpaid rent pro rata with other creditors. That was the condition of affairs in this case, and it was not error for the county court to so hold.

Upon an assignment by a debtor to an assignee, under the Insolvent Debtors’ act, of real estate which has been held by the assignor under a written lease, the terms of which have not expired, the assignee has a reasonable time in which to determine whether or not he will adopt" the terms of the lease, and whether or not such leasehold can be made available for the benefit of creditors. (Smith v. Goodman, 149 Ill. 75; Spencer v. Columbian Exposition, 163 id. 117.) In this case it has been determined by the judgment of the Appellate Court the ’assignee did not adopt the terms of the lease, and consequently he could not be charged for rent of the premises after he ceased to occupy them.

The effect of the order of the county court reserving the question of rights of the parties, and ordering the assignee to retain a sufficient sum to indemnify appellant if it should be determined its claim for back rent was a prior lien, gave appellant no such right as would entitle it to recover, unless by law it had a prior lien. By law it had none. Appellant was entitled to recover pro rata with other creditors for the rent due it before the assignee took possession. The assignee, not having assumed the lease, was only chargeable with rent for the time he occupied the premises.

The judgment of the Appellate Court affirming the

order of the county court of Cook county was proper,

and is affirmed by this court. J

T , , „ , Judgment affirmed.