
    No. 671
    McCOWN, Excx. v. BUNTING, et
    No. 19896.
    Supreme Court
    On motion to certify.
    Dock. June 16, 1926;
    4 Abs. 404.
    707. LEASES — Is a lease upon real property an appurtenance, thereby rendering meaningless a forfeiture clause based upon an assignment?
   _ This action was brought originally to quiet title in the Columbiana Common Pleas by George C. McCown against Mary Bunting, Daniel Bunting, Ruth Bunting Kerr and John Kerr. Since the filing of the action originally George McCown has deceased, and Ella Mc-Cown as executrix is now prosecuting the action.

Attorneys — Charles Boyd, East Liverpool, for Pltff.; W. A. O’Grady, Wellsville, for Defts.

It appears that George MeCown was the owner oí a parcel ol land 18 x 110 feet in Wellsville and at the time of purchase one Laura M. Luke was the owner of 42 feet adjacent to that owned by MeCown. In 1906 Austin MacKenzie executed a 30 year lease to Laura M. Luke, a tenant in common with him in the lot owned .by defendants herein under a conveyance from Laura M. Luke.

The lease contained a stipulation which provided that it could not be assigned and that in the event an. assignment should be made the lease would be terminated.

MeCown brought this action to require defendants to remove certain bulidings and to enjoni them from interferring with his use. The defendants assert and claim ’by virtue of a lease-hold interest which they obtained under an assignment from Laura M. Luke.

The judgment of the Common Pleas in favor of the defendants herein was affirmed by the Court of Appeals.

MeCown in the Supreme Court contends:

1. That George MeCown was in possession of said property 'to such an extent that, he

2. That 'the defendants herein were not en-could bring an action to quiet title.

titled to affirmative relief on their cross petition.

3. That the lease was not an appurtenance and therefore the forfeiture clause was binding and an assignment was invalid.  