
    *Walter Armstrong v. Arndt Kattenhorn and Martin Kattenhorn.
    A parol contract for a lease between landlord and tenant in possession, under a prior lease, is within the statute of frauds; unless possession be held solely under, and in performance of, the parol contract, the terms of holding clearly indicating the possession to be under the subsequent parol lease.
    This was a writ of error from the court of common pleas of Hamilton county.
    On the trial below, a verdict was rendered in favor of the defendants, under the charge of the court, to which the plaintiff excepted.
    The bill of exceptions shows that the defendants were in possession of certain premises as lessors.
    That Armstrong purchased these premises of the owner.
    That, while thus in possession, Armstrong made a verbal agreement with them that they should have and occupy said premises for one year, from February 6, 1840, at an annual rent of S600, payable fifty dollars per month in advance.
    That the defendants occupied and paid the rent up to June 6, 1840, when they abandoned the premises.
    This suit was brought to recover rent due on the 6th of Juno and 6th of July upon said parol contract.
    Possession of the premises was never delivered to the said defendants, under the said parol agreement on which suit was brought, but theirs was a continued possession of the premises on a contract with the original owner from whom the plaintiff bought.
    Upon this state of facts, the court below charged the jury that, 'if the rent had been paid by the defendants while in the actual occupancy of the premises, and the plaintiff sought .(merely) to recover upon the breach of the parol contract, concerning the renting of the premises, that it was within the statute of frauds, unless the possession of the premises had *been delivered in pursuance of the parol contract; and that if the possession was a mere continuance of possession, had under a former lease, such continued possession would not be such part performance of the parol contract made with the defendants, as would take the case without the statute of frauds.
    That to take the case without the statute, upon the ground of part performance, there should have been an actual delivery of the possession, in pursuance of the parol contract; and if such had not been the case, the plaintiff could not recover for the breach of the parol contract.
    To which opinion of the court counsel except, and assign it as error.
    Riddle and Roll, for the plaintiff:
    The plaintiff in error contends that the contract between the parties was so far changed by the parol lease, on February 6, 1840, by the payment of the rent, agreeable to said contract, subsequently, from February 6, 1840, to 6th June, same year, monthly, in advance, and was so different from the original possession and tenancy, that such a possession, under such circumstances, took the case out of the statute of frauds.
    The contract made on February 6, 1840, put an end to the old tenancy and possession, and by the defendants attorning to plaintiff, agreeable to the new contract, such a possession and compliance, under that contract, on the part of the defendants, would take the case out of the statute. In other words, it was such a part performance, on their part, that a court.of equity would have decreed against the plaintiff a specific performance of the lease.
    Judge Story sayB: “ If the possession be delivered, and obtained solely under the contract, or, if in case of a tenancy, the nature of the holding be different from the original tenancy, as by the pay-meat of a higher rent, or by other unequivocal, circumstances, referable solely and exclusively to the contract, *then the possession may take the case out of the statute.” 2 Story, 68,69.
    Now, we say that the holding, by the Kattenhorns, under the parol contract, between them and plaintiff, was entirely different from their former tenancy ; they paid a different rent, and attorned to a different landlord, and under a different contract, from what they were in possession under.
    The defendants do not pretend to say that they held under the lease given by Barr. Had not the possession so far changed, by the contract aforesaid, between plaintiff and defendants, as to make it a new lease, we would not contend, for a moment, that the court below erred in the decision there made.
    We wish to be understood that, by the defendants’ entering into a new contract, paying rents differently, and attorning for same under said new contract, that it was so far a change of the original tenancy, and that there was such a partial performance of said new contract, as to take the case out of the statute.
    Should the court be of a different opinion, then the judgment of the court below should be affirmed. If otherwise, it should be reversed.
    Wright, Coffin & Miner, with James Riley, for defendants:
    We do not see any error in the charge of the court. Courts have already gone too far in their efforts to make the statute of frauds of no effect. If wrong, it would be better to repeal it at once.
    In the more recent decisions, judges have expressed regret that so many exceptions to the statute had been established, and expressed a determination not to make any new ones.
    In Lindsay v. Lynch, 2 Sch. & Lef. 4, Redesdale, Lord Chancellor, says: “I am not disposed to carry the cases which have been determined on the statute of frauds any further than I am compelled by former decisions. That statute was made for the purpose of preventing perjuries and frauds ; and nothing *can be more manifest, to any person who has been in the habit of practicing in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been,rigorously observed, the result would probably have been, that fewer instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing; whereas, it is manifest that the decisions on the subject have opened a new door to fraud; and that, under pretense of part execution, if possession is had in any way whatever, means are frequently found to put a court of equity in such a situation, that, without departing from its rules, it feels obliged to break through the statute."
    But it is now supposed attornment, or payment of rent, is such a part performance as will take the case out of the statute. This does not appear to have been a point made on the trial below. If it was made, and the court charged upon it, it is certain there was no exception taken on account of such charge. How can this court, then, look beyond the record for such error, and presume it? If the point was made, the action of the court, in respect to it, must appear in the bill of exceptions, or it is beyond the reach of this court, sitting as a court of errors.
    Waiving this objection, however, for the sake of argument, we have not found any case where it has been held that payment of rent, under a verbal agreement, not accompanied with a delivery of possession, is sufficient of itself to take the case out of the statute. In Wells v. Stradling, 3 Ves. 78, the bill stated that the plaintiff was lessee of a farm for seven years. The lease being to expire in 1794, the plaintiff, in.June, 1793, desirous of making some expensive improvements upon the premises, applied for a new lease for fourteen years, which was agreed to be granted at an increased rent. Shortly after, the plaintiff, upon the faith of the agreement, began to make improvements, and laid out a largo sum of money. Plaintiff continued in possession after the expiration of the former lease, and paid the increased rent, for which the defendant gave him ^receipts. Prayer for specific performance of the agreement. The defendant plead the statute of frauds, with an averment that there was no agreement in writing.
    Thurlow, Lord Chancellor. “ Three grounds are stated: possession by the plaintiff, which he refers to the agreement; payment of an increased rent, which he also refers to the agreement; and the laying out of money upon the improvement of the farm.
    “As to the first ground, the possession in the case of a tenant, who, of course, continues in possession, unless he has notice to quit, the mere fact of his continuance in possession would not weigh. The delivery of possession, by a person having possession, to the person claiming under the agreement, is a strong and marked circumstance; but the mere holding over by the tenant would not, of itself, take the case out of the statute, or even call for an answer.
    “As to the money laid out, if it was part of the contract that money should be laid out, and it was one of the considerations for granting the lease, it is very strong to take the case out of the statute. But the circumstance which I think distinguishes this case is the payment of the additional rent. Payment of additional rent, per se, is an equivocal circumstance, it is true. It' may be that he should hold from year to year, the lease being expired. But the averment is that the landlord accepted the additional rent upon the ground of the agreement.”
    Whether the possession be an unequivocal act, amounting to part performance, must depend upon the transaction itself, whether it be so circumstanced that it can refer only to a contract of sale. If the connection of landlord and tenant had before existed, it would be a continued possession, and no evidence of a contract. Savage v. Carroll, 1 B. & Beatt. 282; Morphett v. Jones, 1 Swanst. 181.
    A parol agreement will not be enforced upon the ground of part performance, as when the act is equivocal, and easily admits compensation ; as by a tenant rebuilding a party wall. So a tenant’s possession and cultivation of the premises would not *sustain a parol agreement to purchase. Frame v. Dawson, 14 Ves. 387.
    The acts done in part performance must be such as could be done with no other view than in part performance of the agreement. Gunter v. Halsey, Amb. 586 ; Lacon v. Mertins, 3 Atk. 4; 2 Story’s Eq. 69.
    Judge Story says : “ Mere possession of the land contracted for, will not be deemed a part performance, if it be obtained wrongfully by the party, or if it be wholly independent of the contract. Thus, if the vendee enter into possession, not under the contract but in violation of it, as a trespasser, the case is not taken out of, the statute. So, if the vendee be a tenant in possession under the vendor; for his possession is properly referable to his tenancy, and not to the contract. But if possession be delivered, and obtained solely under the contract, or if, in case of a tenancy, the nature of the holding be different from the original tenancy, as by the payment of a higher rent, or by other unequivocal circumstances, referable solely and exclusively to the contract, then the possession may take the case out of the statute.” 2 Story’s Eq. 69.
    The concluding remarks, above, are evidently grounded upon the case of Wills v. Stradling, 3 Ves. 378, before cited. But what is there in the case under consideration, referable solely and exclusively to the contract? Not the possession, for that is referable to a former agreement, with a prior owner of the premises; not the payment of rent, if that fact is to be considered, for that may be referred to the former agreement, or to the mere occupation or use.
    In the case of Frame v. Dawson, 14 Ves. 381, the defendant became the owner of the premises during the plaintiff’s tenancy under a former lease, and the plaintiff attorned to him; yet it does not appear that this fact was relied upon.
    The case of Jones v. Peterman, 3 Serg. & Rawle, 543, is identical with the case made by plaintiff’s bill of exceptions. Jeremiah Hornketb, the younger, was entitled to the land in dispute, as administrator of his deceased father, Jeremiah TTornketh, under a lease to the latter, made by Wm. Hamilton, dated *November 28, 1812, for the term of seven years. In 1813, Hornketh, the son, made a verbal agreement with one Jacob Perkins, to devise to him this land for the residue of said term. This verbal agreement was to have been reduced to writing, but was not. Perkins was in possession of the premises at the time of making the verbal agreement, and before, by virtue of some agreement with the son or the father, and continued in possession until ho assigned to the defendants.
    The plaintiff claimed under a written assignment of William Hamilton’s lease, made by Hornketh, the son, dated July 22, 1814. Upon these facts the court held that possession, had before a parol agreement of lease for seven years, and continued afterward, is of too doubtful a nature to be considered as part performance, and to take the case out of the statute for the prevention of frauds and perjuries. Although not expressly stated, Perkins must have paid rent, for he had the premises several years after the verbal agreement. So the case is identical, in all respects, with the one under consideration.
    We have examined a great number of authorities, but have not found a single one to sustain the claim of the plaintiff.
    We therefore conclude that, even without reference to the authorities cited by us, this court, in the absence of express authority, will not create a new exception to the statute of frauds for the benefit of the present plaintiff.
   Bead, jT.

We are unable to perceive any error in the charge of the court below.

The foundation of the action was a parol lease, of a term which the statute of frauds and perjuries declares void. To escape its operation, reliance is had upon part performance.

Part performance, which avoids the statute, may be defined to be acts done in performance of the contract, which put the party performing in such a situation that the non-enforcement of the agreement, as to him, would be a fraud.

The situation of the parties must be so changed that the enforcement of the contract alone can furnish adequate relief.

*Henee, the mere payment of the purchase money will not avoid the statute, because its recovery back is regarded as full compensation. But delivery of possession, in performance of the contract, avoids its operation.

But if possession be relied upon, it must be clearly referable to the contract, and be delivered and held in performance of it.

Possession must give the contract life, and if they can possibly be separated, the parol agreement perishes under the operation of' the statute.

Hence, if the possession can be referred to any other source than the parol contract, which it is claimed to support, even to the wrongful act of the party in possession, or to a different contract, the statute applies.

Thus, if a vendor sell to a vendee, in possession as tenant, the possession is referred to the original tenancy, and not the contract of sale. So with a tenant in possession, in case of a parol agreement for different terms of holding, if no acts are performed which clearly show that the possession is continued under the last agreement, it will be referred to the original tenancy, and such parol contract will be void. '

In the ease now under consideration, the record shows no act that is not as clearly referable to the possession under the old tenancy, as the parol lease upon which recovery is sought.

If it be contended that rent was paid under the parol contract, it may be replied, from aught that appears in the record, that the same rent was due on the original tenancy, under which the defendants were in possession.

The possession of the defendants, then, is not shown, by unequivocal acts, to have been continued or held solely in performance of the parol contract, and must be referred to the prior lease.

Possession must accompany the contract, in performance of it, in all cases, to avoid the statute; and this is, in substance, the charge of the court below. The record says the possession was not delivered tinder the parol lease, but was continued under the prior tenancy.

*True, Armstrong purchased the premises subject to the lease, and, after the purchase, rent was paid to him, but this, unexplained, must be deemed a simple act of attornment, and does not imply a holding upon different terms.

Rent was due upon either holding, and possession was consistent with the original tenancy. Judgment affirmed.  