Opinion
Decided November 27, 1935.
Real property — Leases — Month to month tenant in possession claimed oral two-year lease — Statute of frauds applicable, when — Tenant's possession must be referable to lease — Tenant's papering and plumbing repairs not inconsistent with monthly tenancy — Insufficient part performance to remove operation of statute.
1. Possession of premises under an oral two-year lease must be commenced with and in consequence of the contract in order to take the agreement out of the operation of the statute of frauds, and where the lessee was in possession as a month to month tenant at the time of making the oral lease, and there was no time fixed for the commencement of the lease, the possession is separated from the claimed agreement and the statute of frauds applies.
2. In such case acts of papering and repairing plumbing by the lessee are not inconsistent with the month to month tenancy and are not such unequivocal acts of possession as would constitute part performance sufficient to take the case out of the operation of the statute of frauds.
ERROR: Court of Appeals for Hamilton county.
Messrs. Hall, Castellini, Frey Jackson, for plaintiff in error.
Messrs. Paxton Seasongood, for defendant in error.
This case originated in the Municipal Court of Cincinnati. It was an action in forcible entry and detainer, brought by The John Shillito Company against the plaintiff in error here, Norah Roos, seeking to obtain possession of certain real estate in the city of Cincinnati held by Norah Roos as a tenant in possession.
The Municipal Court directed a verdict for plaintiff, finding the defendant Roos guilty of wrongfully withholding possession of the property. Judgment was entered on the verdict granting immediate possession of the premises to The John Shillito Company. From that judgment Roos prosecuted error to the Court of Common Pleas, which court affirmed the judgment of the Municipal Court. She now prosecutes error to this court.
Roos claims under a verbal lease for two years, renewable for two years additional, at a monthly rental, under a verbal agreement with her then landlord.
It is claimed by Roos that her possession was under the said verbal two year lease, that she made improvements by papering rooms and repairing the plumbing, and that this was such part performance as would take the agreement out of the statute of frauds (Sections 8620 and 8621, General Code). This is the only ground upon which she could claim a right to possession, and a determination of this question determines the case.
The law is that the possession must be commenced with and in consequence of the contract. If the possession can be separated from the claimed agreement, then the statutes apply. The acts relied on to take the case out of the statute must be unequivocal.
Roos, at the time she claims the two-year verbal lease was entered into, was and had been for some time a month to month tenant of the premises in question. The monthly rent for the succeeding two years was for the same amount. No time was fixed as the beginning of any term under the claimed lease. There was no change in the occupancy or in the management by Mrs. Roos. There is nothing to clearly indicate that her possession was under the parol lease in question. She claims she did some papering and some minor plumbing repairs. This, however, is not inconsistent with her former month to month tenancy. The continued possession is as referable to her first possession as it is to the second, particularly so since no time is proven or evidence tendered as to the time when the claimed new oral agreement was to begin.
Our conclusion is that Mrs. Roos has not shown such part performance as would take the claimed parol lease out of the statute of frauds, requiring it to be in writing.
The following authorities support such conclusion: 19 Ohio Jurisprudence, 618, et seq.; Hodges v. Ettinger, 127 Ohio St. 460, 189 N.E. 113; Ringler v. Benedict, Exr., 39 O.L.R., 1; Madison Bldg. Assn. v. Eckert, 49 Ohio App. 210, 196 N.E. 789; Myers v. Croswell, 45 Ohio St. 543, 15 N.E. 866; Armstrong v. Kattenhorn, 11 Ohio, 265; Wineburgh v. Toledo Corporation, 125 Ohio St. 219, 181 N.E. 20, and cases cited.
The judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court, is affirmed.
Judgment affirmed.
ROSS, P.J., and MATTHEWS, J., concur.