
    J. Mulford and G. Albertson, Adm’rs of P. Tullis, deceased, v. A. Young, Adm’r of G. Wiley, deceased.
    •Contract of lease recites that in consideration of the rents hereinafter mentioned and agreed to be paid, lessor leases lessee a farm, and- stipulates that lessee may use timber for certain purposes, and may seed certain grounds, “in consideration whereof" the lessee agrees to pay certain rents. Plaintiff (lessor) must aver that the lessee enjoyed the premises, or that lessor tendered him the enjoyment. Without such averment, the declaration is bad.
    Recital — that by the contract declared on, the defendant acknowledged himself bound to pay one hundred and eighty dollars, to be paid at a time stated. The contract exhibited upon oyer stipulates to pay “ a yearly rent of sixty dollars." It is a fatal variance.
    
      Wife can not make a valid lease of her husbands lands.
    Where the contract of the wife may become obligatory by the ratification of the husband, it must be declared upon as the husband’s contract, without, reference to the wife.
    This cause was adjourned here for decision from the county of Pickaway. It ❖as an action of debt, and the declaration contained four counts. The first was in these words:
    “For that, whereas the said George Wiley, in his lifetime, to wit, on the 3d day of September, in the year of our Lord, 1819,. at Oircleville, in the county aforesaid, for and in consideration that the said Jonathan Tullis had before that time leased and to-farm let unto *him, the said George Wiley, by his certain [295 article of agreement with the said Wiley, hereinafter named, a certain tract of land therein described, he, the said Wiley, by the same-article of agreement, or writing obligatory, sealed with his seal, and now shown to the court here, the date whereof is the same day and year last aforesaid, acknowledged himself to be held and firmly bound to the said Jonathan Tullis, in his lifetime, in the sum of one hundred and eighty dollars, part and parcel, etc., to be paid to the said Jonathan Tullis, sixty dollars thereof on or before March 1, 1821; sixty dollars thereof on or before March 1, 1822, and sixty dollars on or before March 1, 1823.
    The second count recited that the defendant’s intestate,, “for and in consideration that Nancy Tullis, the then wife of the said Jonathan Tullis, had before that time leased and to farm let unto him, the said Wiley, by her certain articles of agreement with the said Wiley, hereafter named, a certain tract of land, he, the said Wiley, by the same articles of agreement, a writing obligatory to the coui’t here shown, the date whereof is on the same day and year aforesaid, acknowledged himself to be held and firmly bound to the said Nancy Tullis, who died in the lifetime of her husband, the said Jonathan Tullis, the said writing obligatory being reduced to the possession of the said Jonathan Tullis during the lifetime of the said Nancy Tullis and Jonathan Tullis, and duly ratified by the said Jonathan Tullis in his lifetime, in the other sum of two hundred dollars,” etc.
    , The third count is upon the same contract recited in the second, and is the same in terms, except that it omits to aver the ratification by the husband of the contract of the wife.
    
      The fourth count is for use and occupation, to which the plea of nil debet is put in.
    The defendant claimed oyer of the writings obligatory specified in the first, and in the second and third counts of the declaration, and demurred specially : 1. For that the writings declared on contain dependent covenants, and there is no averment of performance, or tender of, or readiness to perform on the part of the plaintiffs. 2. No action of debt can be sustained on said writings, they containing no acknowledgment of an existing debt.
    *The writing specified in the first count, or that part of it [296 which it is material to consider, is in these words: “Jonathan Tullís, in consideration of the rents hereinafter mentioned and agreed to be paid to him, hath letten to the said George Wiley all •the cleared land on the farm belonging to the said Jonathan-Tullís, situate and lying in Springfield township, Ross county.” The writing obligatory-then contains several stipulations, to wit: that the said Wiley may use sufficient timber to repair the fences; to have the liberty of seeding the land, and to use for his own benefit the large timber, etc., and then follows a clause of the agreement in these words: “ In consideration whereof, the said George Wiley agrees to pay the aforesaid yearly rent of sixty dollars;” ■and by another part of the agreement the said Wiley was to have the use of the ground for three years from March 1, 1820.
    The opinion of the court does not require that the contents of the other writing declared on in the second and third counts should be set out. The cause was adjourned here for a decision ■upon the demurrer.
    Olds, in support of the demurrer.
    Doan, contra,
    cited 1 Chit. Pl. 112-114; Reeves D. Rel. 130-132; Cro. Jas. 206; Doug. 83; 15 Johns. 479; 1 Chitty, 643; 2 Saund. 379, 380, n. 16; 1 Wils. 248; 1 New Rep. 43.
   Judge Wood

delivered the opinion of the court:

In respect to the first count, the defendant maintains that the -consideration of the undertaking on the part of his intestate is not letting merely, but, in addition, the actual enjoyment • of the premises leased, and hence he deduces the necessity of an averment that his intestate actually possessed and enjoyed the premises.

It is not difficult to suppose a case in which an agreement to lease, or an actual lease, may be predicated upon such circumstances, and expressed in such terms as that the contract itself, without possession or enjoyment, would constitute a good consideration for the covenant to pay rent. The case, however, is not of ordinary occurrence, and in our opinion this is not such a one. Ry the 297] terms of the agreement ^lessor stipulates that, in consideration of the agreement of the lessee to pay the rents specified, he-had leased the premises named with certain enumerated privileges, to take timber to repair the fences, to use the large timber for the lessee’s benefit, to have the liberty of seeding; then comes-the covenants of the lessee: “In consideration whereof, the said G-. Tull-is agrees to pay the aforesaid yearly rent.” Here is a clear expression for what consideration the rent was to be paid. It was for the enjoyment of the uses and benefits previously contracted for by the lessor, the enjoyment, the seeding, the timber. These are precedent to the covenant to pay rent, and expressly form the consideration for the rent to be paid. The fact of the enjoyment, or of the tender of the privilege to enjoy, made by the lessor to the lessee, ought to be averred in the declaration. This averment must be material, because the proof of the facts, at the trial, would be preliminary to the plaintiff’s right of recovery. In this particular the declaration is defective.

In the opinion of the court there is an objection to this count,, besides the omission of this averment. In describing the instrument declared on, the plaintiff avers that by the said article the-defendant “acknowledged himself to be held and firmly bound to the said Tullís, in his lifetime, in the sum of one hundred and eighty dollars, to be paid,” etc. The written agreement is, by oyer, made part of the pleadings. Upon examining it, the stipulation is in these words: “The said George Wiley, in consideration hereof, agrees to pay the aforesaid yearly rent of sixty dollars to the said George Tullís, at the times above limited for’payment.” Here is a- palpable misdescription of the writing upon which the declaration is founded — a fatal variance between the. obligation declared on and the one exhibited upon the demand of oyer. As the pleadings stand, this variance is presented by them, and furnishes a separate and distinct ground for sustaining the demurrer.

The second count is upon a contract of lease made by a married woman.' A married woman can not make a lease of her husband’s real estate; consequently, if the writing declared on is an operative lease, it is void. If we consider it a contract which the wife could make and the husband might ratify, it should be declared on as the contract of the husband. How it was made is a fact in pais, .to be proved at the trial. *In either aspect of the case the [298 count is bad, and the demurrer to it well taken.

There are the same objections to the third count that vitiate the second, with this, in addition, that the contract is alleged to have been made by the wife, and the husband’s ratification is not averred. A wife can not bind, her husband by a contract of this description, even if it be not a lease, without his ratification of such contract. The recital that the contract was made by the wife, without an averment of the husband’s ratification, does not make a case for the husband to reason upon.

The issue in fact on the fourth count, not having yet been tried, the cause is remanded for that purpose only. The demurrer to the three first counts is sustained.  