FORCIBLE DETAINER.

[Wood Circuit Court,

April, 1896.]

Haynes, Scribner and King, JJ.

#### Dennis v. Hanson and Weddell, Ex’rs.

Eviction or Lessee Holding Under a Parol Lease.

The executors of a deceased lessor cannot, in a forcible aetainer action, evict a lessee before the expiration of his term, who, under a verbal lease for a period of five years, has entered into possession of and enjoyed the premises, and paid the annual rentals agreed upon with his lessor.

Scribner, J.

On the 4th day of April, 1895, N. L. Hanson and William Weddell, as executors of the last will and testament of James Dunipace, deceased, filed their complaint in forcible detainer against Charles H. Dennis before one Abel Comstock, a justice of the peace in Plain township, Wood county, Ohio. The complaint reads as follows: “To Abel Comstock, a justice of the peace in and for the township of Plain, county of Wood and state of Ohio: The undersigned, N. L. Hanson and William Wedf dell, executors of the estate of James Dunipace, deceased, residents o-the county of Wood, state of Ohio, do hereby make our complaint against Charles H. Dennis, of said county and state, for this: That the said Charles H. Dennis has, ever since the 1st day of April, 1895, and now does still unlawfully and forcibly detain from the undersigned possession of the following premises, situate in the township of Perrysburg, in said county of Wood, and described as follows: All those parts of river tracts numbered seventy and seventy-one then and now in his possession, and being those parts of said river tracts belonging to the estate of said decedent.

> “ The said Charles H. Dennis first entered upon said premises as the tenant of the said James Dunipace, deceased, and under a verbal lease with him, which lease expired on April 7, 1893; and on March'30,1893, the undersigned duly served on said Dennis, as required by law, notice, in writing, to leave said premises on April 7, 1893.

> “ By consent of complainants, said Dennis has been allowed to remain on said premises until April 1, 1895, since which later date he has unlawfully and forcibly held possession of said premises.

> “On the 19th day of February, 1895, the undersigned again duly served upon the said Charles H. Dennis, as required by law, notice in writing to leave said premises by April 1, 1895.

> “The undersigned ask process of restitution.

> “Dated this April 14, 1895.” [Signed by the parties.]

A summons was duly issued by the justice of the peace on this complaint, which was made returnable April 10, 1895. Service of this summons was regularly made, and at the time fixed therein the parties appeared. A jury was demanded by the defendant, and the case was by consent continued until July 12, 1895, for trial. On that date the parties appeared with witnesses and counsel, and thereupon trial was had before the justice and a jury. Testimony was submitted on both sides. At the close of the argument certain requests or instructions to the jury as to the *466rules of. law governing the rights of the parties were made, which will be noticed further on.

The trial justice charged the jury very fully and particularly as to the issues to be considered by them and as to the rules of law applicable and which should determine the rights of the parties. He refused certain instructions requested by counsel for the defendant, and in his charge to the jury gave certain propositions which the defendant excepted to.

The verdict of the jury, which was rendered April 12, 1895, was in favor of the defendants, and reads as follows: “We, the jury duly impaneled and sworn in the above entitled cause, do find that the defendant is guilty in manner and form as the plaintiffs hath in their complaint set forth, and that the same and the matters therein stated are true.” The justice of the peace thereupon overruled a motion of the defendant for a new trial, and rendered a judgment of restitution in favor of the plaintiffs below, and also for costs and an order of restitution to issue. A bill of exceptions embodying all of the testimony given at the trial and the charge of the court to the jury, and the action of the court upon the several requests to charge, was duly allowed and filed, and constitutes a part of the record. The motion for a new trial, in its material parts, is as follows:

The defendant moves the court to set aside the verdict and grant him a new trial in this cause for the reasons:

1. That said verdict is not sustained by the law, and is contrary thereto.

2. That said verdict is not sustained by the evidence, and is contrary thereto.

3. That errors of the law occurred upon the trial which was prejudicial to the defendant, in the admission of evidence and the refusal to admit evidence against defendant’s objection, and in the charge of. the justice to the jury, and in his refusal to charge as requested by defendant, and in other respects, as shown by the record, all of which were excepted to by the defendant at. the time.

A petition in error to reverse the judgment of the justice of the peace was filed in the court of common pleas, and the judgment of the justice was affirmed. The errors assigned are substantially those constituting the basis for the motion for .a new trial. The case is now before us upon-a petition in error filed in this court by the defendant; by which he seeks to reverse the judgment of the justice of the peace, as well as that of the court of common pleas.

The complaint filed in the forcible detainer proceedings contains the following direct allegation as to the agreement with the owner under which the defendant entered into possession of and enjoyed the premises in question : “The said Charles H. Dennis first entered upon said premises as the tenant of the said James Dunipace, deceased, under a verbal lease with him, which lease expired on April 7, 1893, and on March 30, 1893, the undersigned duly served on said Dennis, as required by law, notice in writing to leave said premises on April 7, .1893. By consent of said complainants said Dennis has been allowed to remain on said premises until April 1, 1895, since which later date he has unlawfully and forcibly held possession of said premises.”

It is proper also in this connection to call attention to the language contained in the notice given by the executors to the defendant on March *46720,1893, also, to what they state in their notice given by them February 11, 1895, and in the notice given by them February 19, 1895.

> “Perrysburg, O., *March 29,1898.*

> *“To Charles H. Dennis, Perrysburg, Ohio:*

> “Sir: We wish you to leave the following premises, now in your occupation, to wit: That part of River Tracts numbered seventy and seventy-one, in Wood county, Ohio, Occupied by you under your verbal lease from James Dunipace, deceased. Your compliance with this notice, by April 7, 1893, will prevent any legal measures being taken by us'to obtain possession.”

Another notice reads thus:

> “Perrysburg, O., *February 11, 1895.*

> *“Mr. Charles H. Dennis, Perrysburg, Ohio:*

> “Dear Sir : We wish you to leave the following premises now in your occupation, to wit: That part of River Tracts numbered seventy and seventy-one, in Wood county, Ohio, occupied by you under verbal lease, originally with James Dunipace, deceased, and now with the undersigned. Your compliance with this notice by March 10, 1895, will prevent any legal measures being taken by us to obtain possession.

> [Signed.] “N. D. Hanson,

> “William Weddell.”

And again:

> “Perrysburg, Ohio, *February ID, 1895.*

> “ *To Charles Ft. Dennis:*

> “Sir : You having expressed a desire for more time in which to close up the season’s operations on the farm, take notice that we wish you to leave the following premises now in your occupation, to wit: T-hat part of River Tracts numbered seventy and seventy-one, in Wood county, Ohio, occupied by you under verbal lease, formerly with James Dunipace, now deceased, and more recently with the undersigned. Your compliance with this notice by April 1,1895, will prevent any legal measures being taken by us to obtain possession. Respectfully yours,

> “William Weddell,

> “N. D. Hanson.”

The testimony of the defendant relating to the terms of his occupancy is contained in the record and is as follows: “I had a conversation with N. D. Hanson in the spring of 1893, soon after the death of Mr. Dunipace, in which he asked me what the agreement was under which I occupied the farm, and I told him that Mr. Dunipace and I had agreed that I should occupy the farm for five years from the time I went into possession of it, and if it was satisfactory to both of us at the end of that time, 31 was to have it for two years more. I also told him that I was to have one-half of the crop, and I was to deliver the other one-half in the market for Mr. Dunipace as his share, but I was to be paid for hauling the same to market. And I told him that I went into possession of the farm on the 7th day oí April, 1892, and that my five years began on that day. Mr., Hanson said the executors could not recognize a lease for that time *468unless it was in writing. I told him that this lease was not in writing. Soon after that, that is, on the last of March, 1893, I received from Mr. Hanson a letter dated March 30, 1893 — the paper which is here shown me marked Exhibit E — and enclosed with it a notice for me to quit the premises. (Exhibit A.) The papers ■which you have shown me — Exhibits E and A — are the letter and notice referred to. A few days after this Mr. Hanson and Mr. Weddell came out to the farm and asked me if I was going to stay on the place; I said to them that I did not care whether I stayed or not. They said you had better stay and continue right along as you have been doing. And afterward, in August, 1893, I called upon Mr. Hanson when he was picking plums in his garden and asked him if he wanted the place, and said, ‘If you do, I will give you the place next spring.’ Mr. Hanson said, ‘We had a little trouble in the spring, but I had forgotten all about that; you go on and run the place just as you have been and that will be satisfactory.’ Nothing more was said about it, 'and no objection to my staying was made by either Mr. Weddell or Mr. Hanson until Mr. Hanson served the notice on me to quit, which was on the 11th day of February of this year. That notice was to quit on the 10th day of March, 1895. The paper which you showed me, exhibit B, is the notice to which I refer. Between the 7th of April, 1893, and the 11th of February, 1895, both Hanson and Weddell were on the place, a good many times, and neither of them either said anything about my leaving, or made any complaint about my staying or about the way I was running things. I have always claimed to them that I was occupying under my verbal lease from James Dunipace, deceased, I claim that I did not have any new lease from them and was not occupying under any new arrangement with them. I accounted to them for half of the. crop of the first year and delivered it to them, and for half of the crop of the second year ending April 7,1894, and delivered it to them, and I have kept a strict account of the crop of this year, but I have not yet settled with them for all of that. I never refused to settle, but when Mr. Hanson came there on the 11th of February I told him that I would settle, but I was not ready to do so that day, and then he handed me the notice of that date which he had brought with him and had in his pocket. I divided the wine in the cellar, putting the landlord’s share on one side and mine on the other, and I never touched theirs. My share of this wine made from the grapes on the place is about 800 gallons, and it is worth 50 cents a gallon — I have been selling it for that.”

It clearly appears from the record that the defendant entered into possession of the premises in question about the 7th of April, 1892, under and by virtue of the verbal lease entered into with James Dunipace, and that by the terms of this verbal lease it was agreed that the defendant should occupy the said premises for the full term of five years, and by virtue of said lease he did so occupy and enjoy them down to the date of the commencement of this action in forcible detainer.

Under this state of facts what were, and are, the rights of the respective parties in and to the possession and enjoyment of said premises? It was claimed in behalf of defendant that under the foregoing state of facts the lessee became the tenant from year to year during the entire term of five years, and that the landlord could not put an end to the tenancy without giving him six months notice to quit, and that such notice must be to quit at the end of some certain year of such term *469occurring six months after the giving of such notice. Counsel for plaintiffs claiming that the defendant was a mere tenant at will. The court refused to give this request of the defendant, and among other things instructed the jury as follows:

> “ The defendant claims to hold and occupy the premises by virtue of the lease made during the lifetime of Mr. Dunipace. It is conceded by all parties that the lease the defendant claims to hold under is a verbal lease and is a lease for five years. A lease of that kind is void. It does not convey anything nor entitle him to expect to derive any benefit from it. Now, real estate can be conveyed by a verbal agreement and part performance where something has been done in pursuance of and in carrying out the contract that takes it out of the statute of frauds, and the contract is under such circumstances enforcible. Supposing that in this case Mr. Dunipace had verbally agreed with the defendant that he would rent him the premises for five years. Now the defendant goes away, and then he comes back to take possession of the premises by virtue of that agreement. Mr. Dunipace has changed his mind, he says: ‘ I have no wish to carry out the contract that was made between you and I.’ There would be no remedy in law for Mr. Dennis whereby he could recover possession of the premises. The defendant might have a right of action, perhaps,, against Mr. Dunipace, for damages; a suit for damages might be sustained, but under the law he could in no way compel the owner of the premises to comply with this verbal contract.”

It is clear from that portion of the charge that the justice is stating a hypothetical and argumentative case by way of illustration of the doctrine that he lays down to the jury that such a contract is void and cannot be enforced under the statute, cannot be taken out of the statute. Well, now, it was upon this state of facts and upon the instruction given by the justice that the verdict of the jury finding that the complaint of the executors — plaintiffs—was true, was returned. I may remind the parties once nfbre that according to the complaiúí filed with the justice of the peace upon which this trial was had, that the defendant Dennis entered upon said premises as the tenant of James Dunipace under a verbal lease, which lease expired on April 7, 1893, and that according to the record the notice served by the plaintiffs upon the defendant, it was expressly averred in each of the notices that were given, that the defendant had entered into the possession and occupancy of the premises in controversy under a verbal lease with the owner, James Dunipace, deceased. It is clearly established by the record, and it is not questioned in the case, but what this defendant who entered upon these premises under this verbal lease, entered into the possession of the land in question here — occupied for a fixed term of five years — occupied and enjoyed the premises down to the commencement of this acfion, and for ought it appears here, is still in possession under that lease. Well, waiving the question argued by counsel to the jury on the trial as to whether such a lease, being in parol and not executed according to the formalities prescribed by law, created a tenancy from year to year, or a tenancy at will, let us come directly to what, as appears to us, is the material thing: whether or not here is a contract for the enjoyment of an interest in real estate for a fixed term, under which possession was given by the owner, taken and enjoyed by the tenant under such circumstances as takes the case out of the statute of frauds and protects the lessee against any attempt to evict him.

*470Now, in the case of *Grant*v. *Ramsey,*7th Ohio State Reports, page 158, this question was fully considered and determined by the supreme court as we understand it. In this case the question was very fully considered by all the members of the court, and a very able opinion was delivered, from which I propose to quote somewhat. I will first, however, read from the syllabus of the case, or so much of it as bears upon this question : “ A parol lease of lands for more than one year, but less than three, will, by the taking possession under it, and the payment of rent according to its terms, be withdrawn wholly from the operation of the statute of frauds.” This was an action brought to recover certain installments of rent which had accrued upon *a*parol lease of the lands. The syllabus goes on: “ In such a case the tenant cannot, by a voluntary abandonment of the premises during the term, terminate his further liability to pay rent, although the landlord may have neglected to execute a written lease according to the agreement of the ■ parties, unless the abandonment appears to have been on account of such neglect.” Coming now to the 'opinion of the court, at page 164: “ We proceed then to the consideration of the second question. Was the contract, upon which the plaintiff in the court below brought suit, void by the statute oí frauds? Or, being a parol contract of lease for more than one year, and less than three, would it be taken out of the statute of frauds by part performance ? ” The court then reads the statute and proceeds: ' “ The plaintiff in error claims that the contract in this case being by patol, was void, first, because it was for an interest in lands, and secondly, because it could not be performed within a year. It is admitted that the contract was not in writing; the term is shown by the former recovery to have commenced December 12, 1853, and extended until April 1,1855 (more than one year); it is admitted that the lessee went into possession of the leased premises, under the lease, and enjoyed thqm for several months, paying rent according to the contract, as the installments fell due. Under these circumstances, had the lease been only for one year, would it still have'been void under the clause of the statute relating to leases and interests in lands ? If void as to one party, it must have been equally so as to the other. If it would have bound the lessor so that he could not at pleasure eject the tenant, it must have also bound the lessee for the payment of rent. We suppose it to be no longer questionable in this state that a parol lease for one year where the tenant is put into possession is valid, notwithstanding the terms of the statute. In *Wilber*v. *Paine,*1 Ohio, page 251, where a parol contract was made to clear and fence a lot of ground, the party so clearing and fencing to have the privilege of raising a crop of corn on the premises, the landlord entered and gathered the crop. The assignee of the tenant brought trespass and a question was made as to whether the contract was within the statute of frauds. The court held that it was taken out of the statute by the part performance. They say: ‘It has been frequently held on the circuit that the delivery and possession on a parol agreement was sufficient to take it out of the statute, and we see no reason to reverse the rule or to reject the principle upon which it is founded. When the existence of a contract is evidenced by a change of possession which must result from the joint act of the parties the mischief intended to be remedied by the statutes, is scarcely to be apprehended. The fact, as far as it goes, is as satisfactory evidence of the existence of *a*contract as a memorandum in writing could be, and it may be added that under such circumstances to enforce the statute and leave the party who had been put' into possession by virtue of an *471agreement, to be treated as a wrong-doer, would not only be repugnant to justice,'but would make the statute a shield and protection for injustice.’ We have decided that a parol lease of a farm for one year, after the lessee had been put into possession, was valid, and that the tenant might defend his possession against his landlord as well as against a stranger.”

Further on, on page 169, the judge proceeds: “But we have found no case in which it has been held that where a contract for an estate or interest in lands is by part performance taken out of the provision of the statute of frauds which relates in express terms to real contracts, it may still be held void as within the provision of the same statute which relates to agreements not to be performed within a year. Bands are usually sold by contracts, which are not to be fully performed within one year, and such we apprehend has been the character of most of the real contracts which have been held by the courts to be taken out of the statute by part performance. But if it be necessary from considerations of iquity, and in order to suppress fraud, that courts should hold parol lontracts for real estate, which may be fully performed within one year, to be taken out of the statute by a change of possession and the making of improvements upon the premises, these considerations lose none of their force where the parties have acted still longer on the faith of the contract, and improvements have been continually made for years.”

In a case reported in the 8th Ohio State Report, page 257, *Richardson*v. Bates, an action had been brought upon a land contract for the lease of land for the period of five years. The lease had not been executed according to the requirements of the statute. The court held there that an action to recover the stipulated rent could not be maintained. And in the course of the opinion delivered in that case, Judge Sutliff says.this: “The record shows that the plaintiff by his petition predicated his rights to recover solely upon the indenture set forth in his petition. He did not aver a part performance, and ask to have the instrument reformed and then enforced. Nor does his petition state a decvery of possession by the plaintiff, or an occupancy by the defendants ; but the right of action is placed solely upon the obligations imposed upon defendants by the instrument set forth.” In this proceeding, in the complaint filed with the justice of the peace, it is averred distinctly and ' the record shows that the parties were proceeding on the assumption that that was true, that the tenant entered into the possession of the premises and was holding them under a verbal lease entered intos by the owner and the lessee; and it appears in the record that the lesiee had not only entered and occupied under the rental agreement wh ch had been entered into, but he had cultivated and paid rents; that he had conducted himself in all respects as a man might be expected to conduct himself who had entered and was in possession of the premises under a lease with the owner.

Well, now under this state of facts it appears to us that he was entitled to be protected in his posesssion of these premises. That the owner or the executors had no right to interfere and evict him from the possession and'enjoyment of the premises which he had entered upon under the parol contract and part performance of that contract.

That the doctrine of the court in the case of *Grant*v. *Ramsey,*as laid down and as suggested in the case of *Richardson*v. *Bates,*is applicable here and that under that doctrine the defendant was entitled to be protected against an action brought to evict him from the possession of *472the premises. In this case of *Richardson*v. *Bates,*the judge says iiff; the plaintiff in his petition predicted his right to recover solely upon the indenture set forth in his petition. Hs did not aver a part performance and ask to have the instrument reformed and.then enforced. Nor does the petition state a delivery of possession by the plaintiff or an occupancy of the defendants.

*Jason Barber & R. S.*Parker, Attorneys for Plaintiff in Error.

*Troup & Dumzt D. K. Hollenbeck,*Attorneys for Defendants in Error.

There is a question arising in this case of importance and it may be proper to consider it. The action of these executors was based entirely upon the statute allowing proceedings in forcible entry and detainer. As in the case of *Richardson*v. *Bates,*the lessee did-not undertake to set out by an independent proceeding in a court possessed of general equity jurisdiction of the facts, the execution of the contract and taking possession under it and ask for specific relief and for the reformation of the contract, but he defended himself upon the facts as they appeared upon the complaint of the plaintiff and upon the testimony submitted.

Wc think he was entitled to protect himself against a proceeding for eviction; a proceeding by which it is sought to oust him, under facts which the executors themselves have set out in their complaint and upon which they based their right to ..disturb him in his possession of the premises.

In conclusion and upon the whole, it is the judgment of this court that the court of common pleas erred in affirming the judgment of the justice of the peace, and it is ordered that the judgment of the common pleas court be reversed ;• and, as there ’is some doubt as tG the power and right of this court to reverse the judgment of a justice of the peace, the case is remanded to the common pleas court with instructions to enter such judgment as it should have entered — a judgment of reversal of the judgment of the justice of the peace and a dismissal of *the.*proceeding with costs.