APPEAL from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT:
Plaintiff, Robert Lee Anderson, a minor, brought an action in the Circuit Court of Cook County, by his mother and next friend, Louise Anderson, seeking damages from William H. and Mary M. Suchier (Suchiers), defendants (among others) herein. Plaintiff's second amended complaint was dismissed on the Suchiers' motion for summary judgment. The court entered an order dismissing them from the suit and found, pursuant to former section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1963, ch. 110, par. 50(2), now Illinois Supreme Court Rule 304(a)), that there was no just reason to delay enforcement or appeal from its order. It is from the order granting summary judgment in favor of the Suchiers that this appeal has been taken.
On May 7, 1963, plaintiff was three years old, and resided with his mother in an apartment building located at 120 South Wood Street, in Chicago. He suffered injuries while playing on the second floor landing when he fell through a stair railing from which some slats were missing.
March 25, 1963, the Suchiers, the beneficial owners of the buildings, entered into an installment contract with Jessie and Mable Smith (Smiths), whereby the Smiths agreed to purchase the property. Among other things, the contract provided that title would not be conveyed until the Smiths completed their installment payments, and that the Suchiers were to have the right to make repairs on the property in the event the Smiths failed to do so. The Smiths took possession of the building on May 1, 1963.
In his second amended complaint plaintiff alleged that both the Suchiers and the Smiths were aware, or should have been aware of the defective condition of the railing. The gist of the complaint was that both the Suchiers and the Smiths had a duty to keep the railing in proper repair, and that they breached that duty by negligently failing to do so. The issue presented is whether the Suchiers, as contract vendors of the property, can be held responsible for injuries which were sustained subsequent to the time the vendees took possession, but resulting from defective conditions which existed prior to the transfer of possession.
• 1, 2 The Illinois courts have held in numerous cases that in a situation where a vendor surrenders possession and control of property, he is no longer liable to third persons who are injured as a result of defeots existing in the premises at the time of the transfer. (Conway v. Epstein, 49 Ill. App.2d 290; Porter v. Miller, 24 Ill. App.2d 424; Koehler v. Southmoor Bank & Trust Co., 40 Ill. App.2d 195.) Our courts have also held that a trustee who holds legal title to realty is not liable for damages resulting from defects in the trust premises when by the terms of the trust agreement the beneficiaries and not the trustee have the power to make the needed repairs. Brazowski v. Chicago Title & Trust Co., 280 Ill. App. 293; Fields v. 6125 Indiana Ave. Apts., Inc., 47 Ill. App.2d 55.
In accordance with the above stated rule, and finding that the necessary elements of possession and control were lacking, the court in Mulcahy v. Weber, 98 Misc. 266, 162 N.Y.S. 985, held that a mortgagee is not responsible for injuries sustained as the result of defective conditions existing on the mortgaged property. Other courts have also followed that rule. (See Bank of America v. Bank of Amador County, 135 Cal.App. 714, 28 P.2d 86; Zisman v. City of Duquesne, 143 Pa. Super 263, 18 A.2d 95; Lyon v. Queensboro Corporation, 232 App. Div. 781, 248 N.Y.S. 353; Sabiston's Adm'r v. Otis Elevator Co., 251 Ky. 222, 64 S.W.2d 588; Sansotta v. City of Pittsburgh, 330 Pa. 199, 199 A. 164.) In all of these cases the lack of possession and control was the determining factor precluding the imposition of liability.
• 3 In situations involving the liability of landlords for injuries sustained as the result of defective conditions existing on their premises, the question of possession and control has in many instances been the determining factor in imposing or precluding the imposition of liability. The courts have held, for example, that when a landlord is in possession and control of the common ways of a building he has a duty to keep them in good repair, and will be held responsible for injuries sustained as a result of a breach of that duty. Myrick v. Herrmann, 17 Ill. App.2d 301; Holsman v. Darling State Street Corp., 6 Ill. App.2d 517.
• 4, 5 The basis of the rule in each of the cited examples appears to be that if a trustee, mortgagee, landlord or vendor of realty is not in possession and control of the premises upon which the defective conditions exist, the failure to remedy them cannot be said to be the result of his negligence or the breach of any existing duty. In the absence of contractual obligations or a finding of vicarious liability, a plaintiff must look to the person guilty of negligence in order to recover. (Darner v. Colby, 375 Ill. 558.) In the case before us, plaintiff has sought to impose liability on the Suchiers by drawing an analogy between their relation to the building and that of a landlord to his property. (See Combow v. Kansas City Ground Inv. Co., 358 Mo. 934, 218 S.W.2d 539; and Smith v. Tucker, 151 Tenn. 347, 270 S.W. 66.) [Both of these cases rejected this analogy in different factual settings.]
• 6, 7 Although plaintiff has not cited any case, he has raised two points in support of his landlord-tenant analogy. He first argues that collecting payments on an installment contract is similar to the collection of rent from a tenant. It is urged that because the contract vendor has a monetary interest in the property, his relation to the property is similar to that of a landlord. We must disagree with that contention. When a tenant pays rent he is entitled to possession for only a limited period of time, and when the time expires he must surrender possession to the owner or other person entitled to possession. However, when one makes payments on an installment contract, he is usually considered to be the beneficial owner of the property. As the court stated in Shay v. Penrose, 25 Ill.2d 447, at 449:
"* * * when the owner of land enters into a valid and enforceable contract for its sale he continues to hold the legal title, but in trust for the buyer; * * * The conversion takes place at the time of entering into the contract."
As stated earlier in this opinion, the Illinois courts have held that a trustee will not be held liable for injuries sustained as a result of defects existing on the property to which he holds title, without a showing that he was in possession and control thereof. Applying the rule announced in Shay v. Penrose, supra, the Suchiers are to be treated not as the owners of the property but merely as trustees.
If an analogy is to be drawn to the relationship of the parties in question, the relationship of a mortgagee to a mortgagor would appear to be more fitting. In Mackey v. Sherman, 263 Ill. App. 109, the court, at page 115, cited Smith v. Moore, 26 Ill. 392, and stated that
"* * * upon this hearing the attention of the court was called to numerous cases holding that the relation which the purchaser of land under an executory contract occupied to the seller was that of a ...