
    Abraham Wilson v. Trustees of No. 16.
    Suits by quasi corporations, such as township trustees, are to bo brought in the name of the corporation. It is too late to allege a variance between the party plaintiff in the transcript and in the declaration, after a general plea to the action.
    Township trustees can sustain an action for use and occupation against occupants who have held and used the township sections under a void lease
    In an action for use and occupation against tenants under a void lease, the writing may be given in evidence to show the value of the rents.
    This was a writ of error, adjourned from the county of Mont.gomery.
    The suit was commenced before a justice of the peace, in the mame of “ Jacob Lodge and James Dunkely, trustees of section 16, township 3, range 6.” It was brought into the court of common .pleas by appeal, where the declaration, that was filed, commenced -thus: “ The trustees of school section 16, township 3, range 6, ■Butler township, Montgomery county, complain,” etc., and proceeded to declare in assumpsit for use and oecujiation. The defendant demurred, but withdrew the demurrer, and substituted <the plea of non assumpsit, and upon this issue the jury found a «verdict for the plaintiffs, and judgment was rendered for them; .to reverse which the writ of error was brought.
    The errors assigned were : 1. That there was a variance in the ..parties plaintiffs to the original suit, before the justice, and the parties plaintiffs in the declaration, in the court of common pleas. *2. That assumpsit, for use and occupation of improved «school lands, can not be maintained to recover rents.
    P. P. Lowe, for plaintiff in error:
    This suit was appealed to common pleas by Wilson. The «declaration shows that it has added to the plaintiffs’ the words “school, Butler township, Montgomery county, Ohio.” This is such a change in the party plaintiffs as the law will not tolerate. Upon this ground a motion was made to nonsuit the plaintiffs in «court, and the motion was overruled. A party may change one form of action ex contractu to another, but he can not change the .name of the plaintiffs in the present controversy after judgment ¡before the magistrate. See 5 Ohio, 186 ; 29 Ohio L. 492.
    It is contended, by'the plaintiff in error, that assumpsit for use and occupation of improved school lands will not lie to recover rents; that the statute settles the question against the right; it also gives the terms of the lease. “ The trustees of townships aré a corporation for special, limited purposes, with special and defined powers only, and can not, in general, do any act foreign to the purposes of their creation.” 3 Ohio, 157; 5 Ohio, 186; 8 Johns. 425; 9 Johns. 73 ; 12 Johns. 199.
    “The power to lease the school sections is not within the general powers of the trustees of townships; that is a special authority which they are empowered to exercise in only one event.” 5 Ohio, 186. It is as important to adhere to the requirements of the statute in leasing improved school lands, as it is in the alienation of lands in fee. The action of assumpsit for use and occupation, with all its equitable qualities in relation to landlords and tenants, and the doctrines applicable to it does not apply to this case. Our statute directs the mode a lessee shall hold possession of improved school lands? Any other, or different mode, would be an illegal possession at law, contrary to the statute; and if so, no recovery can be had in the present form of action. It is true that the action for use and occupation was a common law remedy in England both before and since 2 George 2, c. 19, but this statute was enacted for the benefit of English landlords, who were constantly nonsuited by their tenants. 4 Hen. & Mum. 161. Although there was a statute on the subject, yet assumpsit lor use and occupation lay. Now, will this doctrine apply to the case in question, and to the spirit and ^provisions of our statute, leasing improved school lands. Indeed, the whole doctrine claimed by the defendants in error may be looked upon as entirely inapplicable. The statute is a special law, for special lands, but actions of assumpsit for use and occupation will not lie where there is an express unexpired lease for the premises. It lies when a tenant holds over, or where there is no agreement. In the present case the law makes the terms of the lease for improved school lands; it makes out the whole contract except the price; it fixes the time of payment, and the manner of protecting the land, etc. Now that these provisions of the statute may be disregarded, the statute not seen or referred to, in order to collect the rents for improved school lands, is a position that certainly can not be subscribed to. Yet if the law regulating landlords and tenants shall govern, then is the statute a useless enactment; but it is said that possession, when the lease was void, will authorize the bringing of this action. Well, if it will, .then there is no difference between the present case and the usual actions for use and occupation.
    If, however, this form of action can be maintained in despite of the statutory provision, the court below should have ruled the declaration also bad on the demurrer. No one will deny but that in order to make a contract, leasing improved school lands, good, it should conlorm to the requisition of the statute strictly. If no contract exists, the right of the plaintiffs to recover is one under the statute, and the declaration should contain: 1. An averment that the lands described in it are- school lands. 2. That the defendant, Wilson, occupied the same. 3. That the payment should be averred to be made on the first Monday of December of a given year. 4. That payment was not made to. the treasurer, and that therefore plaintiffs were entitled to recover ; in short, the declaration should conform to the statute.
    If the declaration fails to describe the lands as school lands, it is bad; no one can well conceive how a different opinion can be entertained, This corporation has control over nothing but school lands, and in an action to recover rent, they should show they seek to recover for the occupation of that, the proceeds of which, by statute, they are authorized to receive. The other averments are equally necessary. If the averment, as to the time of payment, be necessary, then no right of action accrued at the time suit was brought.
    The court of common pleas erred in suffering an unexpired lease to go to the jury to sustain the plaintiff’s declaration for use *and occupation when the suit was brought on the lease.. See Bill of Exceptions, 2 Saund. PL & Ev.,147.
    The common pleas erred in admitting the void lease, because the declaration must be founded on the bill of particular’s before the magistrate, and the one must support the other. 6 Ohio, 307; 29 Ohio Stat. 174, see. 24; see Bill of Exceptions.
    The court erred, in charging the jury, that the plaintiffs, in the action for use and occupation, could recover rents up to any period of time, different from that fixed by the statute. See Exceptions, 29 Ohio Stat. 492, sec. 7.
    
      J. H. Crane, for defendants in error:'
    The first error assigned can not be sustained, for there is no difference between the declaration and the transcript. The parties are the same in both, and the omission of the names of the trustees in the declaration is no variance. “ The safer way of pleading is to omit the names of persons exercising the duties of trustees and use the corporate name only.” Trustees of Concord Tp. v. Miller, 5 Ohio, 186; Hally v. Tipping, 3 Wils. 61; Lloyd v. Williams, Ib. 141 ; Weavers Co. v. Forrest, 2 Str. 1232. Nor were the plaintiffs below confined to the form of action before the justice,-but might change from one species of contract to another. Austin v. Hayden, 6 Ohio, 388.
    The second, third, fourth, and fifth errors assigned are substantially the same, and are founded on the assumption that no action can be sustained except on such lease as' is prescribed by the statute. 29 Ohio Stat. 492, sec. 7. It is contended, that the statute, which gives the trustees the care of the school sections, with power to lease them and to collect the rents, has imposed certain restrictions on the power to lease, and that all agreements, or leases, contrary to that prescribed mode, are without authority, and void-Yet, if ttnder such agreement, or lease,, the tenant has occupied the land, the trustees are not without remedy, and the rent may be recovered in an action for use and occupation. In Wood v. Tate, 5 Bos. & Pul. 247, the lease, made by a corporation, was void, in consequence of a blunder in the mode of its execution, yet the lessee was held to be a tenant from year to year, and the plaintiffs had a right to distrain for the rent due. From the transcript of the justice, and the bill of exceptions taken on the trial by the ^plaintiff in error, it seems there was an article of agreement between the parties, but the article of agreement itself forms no part of the record, and the court can not judge of its nature and contents. If it were an agreement fora lease thereafter to be executed, and the plaintiff-in error went into possession under it, the defendants in error might declare for use and occupation Elliot v. Rogers, 4 Esp. 59, Bannister v. Usborne, cited in Peakes Evid. 242. In McWilliams v. Willis, 1 Wash. 199, it was held, that indebitatus assumpsit would lie for use and occupation of a race ground, notwithstanding a subsisting special agreement in writing relating to the subject. It is admitted, that if a valid lease existed, the plaintiffs below were bound to declare on it, but the court can not, in the absence of proof, presume the existence of such a lease. If the article of agreement purported to be a lease, but was not made in conformity to the statute, and was, consequently, inoperative and void as a lease, still tbe possession of the plaintiff in error under it, would constitute him a tenant from year to year, 5 Bos. & Pul. 247; and the article of agreement might be given in evidence in an action for use and occupation to ascertain the amount of rent. In an action for use and occupation, the plaintiff has been allowed to resort to the original agreement, though void under the statute of frauds, to ascertain the amount of rent due. De Medina v. Poulson, per Gibbs, C. J. Holt, 47. In an action for use and occupation, the plaintiff may avail himself of an agreement, not under seal, whereby a rent certain is fixed to regulate the amount of recovery; and although the plaintiff has not declared on the agreement,'and claims generally to recover for use and occupation, the defendant is not at liberty to give evidence of the value of the premises occupied, to reduce the recovery below the sum stipulated. Williams v. Sherman, 7 Wend. 109. The action for use and occupation is an equitable one, founded on a contract express or implied. Birch v. Wright, 1 Term, 387. It could bo maintained, at common law, independently of the statute 2. Geo. 2, c. 19, on an express promise to pay the plaintiff a certain sum, Eppes Executors v. Cole, 4 Hen. & Mumf. 161 and authorities there cited and also on an implied jsromise. Sutton v. Mandeville, 1 Mumf. 407. There is nothing in the peculiar character and duties of trustees of school sections, which incapacitates them from maintaining this action. It is an appropriate remedy, where the tenant holds over after tbe expiration of a regular lease, and if sustainable in that case, it is equally so *where the tenant has 'occupied with their assent, under a defective leaso, or in any other manner. Debt, for use and occupation, lies by a corporation. Dean and Chapter of Rochester v. Peirce, 1 Camp. 466. In the case of a corporation, the law will imply not only a promise, but an existing tenancy in those who hold the land of a corporation, and a corporation aggregate may, therefore, sue for use and occupation, where the tenant has held possession under'them, and paid rent. Mayor, etc., of Stafford v. Till, 4 Bing. 75. Proof of payment of rent is prima facie sufficient to enables the plaintiff to recover in this action, 2 Saund. on Plead, and Evid. 488, and in this case, that fact may be inferred from the transcript, where the action is stated to be brought for the second year’s rent. The statute of frauds can not be objected to this action, for possession under the contract takes the case out of the statute. Webber v. 
      Paine, 1 Ohio, 255; Moore v. Beasly, 3 Ib. 296. It is, moreover, an established rule, and one peculiarly applicable to this case, that a tenant is estopped from objecting to the title of his landlord, so long as he continues to enjoy the land. Sullivan v. Stradling, 2 Wils. 218; Hayne v. Maltby, 3 Term 442; Cook v. Loxley, 5 Ib. 4; Hodson v. Sharpe, 10 East, 350; Moore v. Beasly, 3 Ohio, 295; Hart’s Lessee v. Johnson, 6 Ib. 89.
   Judge Lane

delivered the opinion of the court:

The first objection assumes a change of parties; that in the suit appealed, Lodge and Dunkely were plaintiffs, while the declaration in the common pleas is at the suit of section 16. But casos in our own reports (3 Ohio, 224; 5 Ib. 186) show that the proper mode of declaring, where these quasi corporations are parties, is by the corporate name, without naming the individuals who compose them. The declaration is right. But, in the case of a variation from the preliminary proceedings, it is too late to except after a plea to the action.

The main question in this case is, whether these trustees can sustain an action for use and occupation. It is urged that they are a corporation with limited powers, capable of leasing for three year's only, on a rent payable annually, on the 1st of December, to the treasurer, and not able to hold land for any other purpose. Hence, it is inferred that no action is sustainable by them to recover rent, except upon the lease. This reasoning is correct where a valid lease exists; but where occupation has been enjoyed, Sunder an invalid lease, no obstacle is perceived to the recovery of the Amount, which the tenant ought ex equo et bono to pay, in this form of action. In cases of mere individuals, it is held the proper form of action, where land has been occupied under a void or expired lease. After the defendant has enjoyed the use of land, he is not allowed to raise a mere cavil, to protect himself from paying a fair rent.

A further ground of error is alleged in argument — that is, the court permitted the plaintiff to give the lease in evidence to the jury, to show the yearly value of the occupation, and thus, enable them to ascertain the sum they should award to the plaintiff. The conception that the lease was void is the foundation of this exception. But it is settled that a writing between the parties, stipulating the amount of rent to be paid, though void as a lease, may be used to prove the value of the occupation, as agreed and fixed upon by the defendant himself. 5 B. & P. 247; Holt, 47; 7 Wend. 109. Judgment affirmed.  