#### W. I. Branagan, Appellee, v. Winders & Alm, Appellants.

LANDLORD AND TENANT: Terms for Years — Option to Renew. A lease “for the term of five years, with the privilege of renting five additional years,” grants an option to renew the lease for said period; but the fact that the- tenant, after the expiration of the first five years, *remains in possession and pays rent*does not, in and of itself, constitute an exercise of said option. In other words, the tenant, under such conditions, becomes a tenant at will.

*Appeal from Palo Alto District Court.*— James De Land, Judge.

April 4, 1922.

Rehearing Denied September 30, 1922.

Aotion in forcible entry and detainer. Cause tried to the court upon an agreed statement of facts. Judgment entered giving plaintiff the possession of tbe real estate in controversy. Defendants *appeal.*—

Affirmed.

*Thomas O’Connor,*for appellants.

*Daniel Kelly,*for appellee.

De Grape, J.

Tliis is an action in forcible entry and de-tainer and the petition is predicated on the second paragraph of Code Section 4208 which reads: *“A*summary remedy for forcible entry or detention of real property is allowable: * * *'**2. Where a lessee holds over after the termination or contrary to the terms of his lease.”

Plaintiff is the owner and lessor of certain premises in Emmetsburg, Iowa and on February 7, 1913 leased said premises in writing to defendants’ assignor “for the term of five years (with privilege of renting five additional years) commencing March 15, 1913,” at $500 per year, payable in monthly installments of $41.65. Upon the expiration of the term, the *462defendants remained in possession of the premises and continued to pay to plaintiff tbe monthly rent of $41.65 to December 15, 1919, which rent was accepted by the plaintiff. Thereafter plaintiff refused to further accept rent and insisted on a new lease with • an increase of rent, if defendants desired further possession of the premises. Plaintiff contends that the defendants were tenants at will holding over after the expiration of the term of the lease, while it is the contention of the defendants that they were exercising the privilege granted to them under the lease of renting the premises for five additional years.

Plaintiff served the statutory thirty days notice to quit and upon defendants’ refusal to surrender possession, the three days additional notice was given. Whereupon this action was instituted to acquire possession of the premises in controversy.

Were the defendants at the time of the service of notice tenants at will? Does the lease give to defendants a mere option to occupy the premises for an extended term or does the lease contain an agreement for an option to renew for a stated term? If the language of the lease is construed as an option for a renewal, then mere continuance in possession after the expiration of the term of the original lease is not in itself sufficient evidence of an election to renew. *Marckres Bros. v. Perry Gas Works,*189 Iowa 1204.

If the lease gave defendants a mere option to occupy the premises for an extended term then the holding over after the expiration thereof will constitute an election to hold for the additional term. *Fritch & Himes v. Reynolds,*189 Iowa 16.

In *Spangler v. Rogers,*123 Iowa 724 the lease was executed in October 1897 and created in the defendant-lessee a term of one year with the option to the lessee “of renting the premises for four years after the termination of the lease on the same terms and conditions. ’ ’ Upon the expiration of the one year term the lessee continued until February 1900 to occupy the premises, when, after giving the plaintiff-landlord thirty days notice in writing of his intention to quit, he vacated and surrendered the premises to the landlord. The lessee did not in any way or by any affirmative act at the expiration of the one year term indicate to the landlord his intention to avail himself of the option to extend the lease for an additional term of four *463years. Tbe action was instituted to recover tbe agreed rental of tbe premises for tbe balance of tbe four year term after tbe defendant-lessee bad surrendered possession. Tbe court considered tbe question whether tbe act of a lessee in bolding over constituted a sufficient election to avail bimself of tbe privilege of extension, as distinguished from a right of renewal provided for in tbe lease. Tbe decision in tbe *Spangler*case was controlled by *Andrews v. Marshall Creamery Co.,*118 Iowa 595, and it was so held.

In tbe *Andretos*case it is said: “An agreement for an option of renewal would seem to imply that the parties contemplated some affirmative act by way of tbe creation of an additional term. * * * after a full consideration of tbe question and the authorities bearing upon it, * * * tbe act of bolding over is not sufficient to show an affirmative election to renew tbe lease for an additional term under a stipulation giving tbe privilege of such renewal. * * * Tbe covenant of renewal itself implies the creation of a new term.”

Tbe foregoing cases control tbe instant case. Tbe authorities are not in harmony, but it will serve no useful purpose to review the conflict or attempt to differentiate tbe varying decisions of courts of last resort. See 16 Ruling Case Law 889, Section 392 *et seq.*

In tbe instant case no notice, either oral or written, was ever given by tbe defendants to tbe plaintiff-lessor of their intention to exercise tbe privilege of renting the premises for five additional years. No affirmative act on their part indicated their intention to renew the lease either before or after its expiration. Defendants rely entirely on the fact that they continued to occupy the premises after tbe expiration of their lease, and consequently the term was extended and they were not tenants at will. Had the defendants herein vacated and surrendered the leased premises after the expiration of tbe defined term in the lease, and bad the plaintiff-lessor sought to recover for tbe unexpired five year additional term, we would have a case analogous in every particular to *Spangler v. Rogers,*supra.

We, therefore, hold that the language of tbe lease was an option for a renewal, and in the absence of evidence to establish a renewal, the lessee holding over was a tenant at will. Tbe *464judgment entered on the facts is in harmony with the declared rule of this court, and *is*— Affirmed.

SteveNS, C. J., Weaver and Preston, JJ., concur.