Hopkins v. Carroll

Ohio Circuit Courts

Hopkins v. Carroll

22 Ohio C.C. Dec. 709

DecidedDecember 7, 1908

StatusPublished

This text of 22 Ohio C.C. Dec. 709 (Hopkins v. Carroll) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hopkins v. Carroll, 22 Ohio C.C. Dec. 709 (Ohio Super. Ct. 1908).

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Opinion

SMITH, J.

The judgment of the trial court in sustaining the demurrer of defendant to the petition we think should be affirmed.

In Armstrong v. Kattenhorn, 11 Ohio 265, it was decided that 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. If the possession- can be referred to any other source than the parol contract the statute fails.

The petition sets out a tenancy for five years from January 1, 1891, under a written lease, containing a privilege of renewal for another term of five years at the expiration of the first term. It also sets out that plaintiff in error entered upon Ids fourth term (took possession) as lessee by virtue of a verbal agreement for another term of five years upon the «same terms and conditions as his former' tenancies. This possession it seems to us is referable to the prior mitten lease, and the plaintiff in error became a tenant from year to year and is holding over his term.

Justices of the peace by R. S. 6600 (Gen. Code 10449) having jurisdiction in cases of a tenancy from year to year, the demurrer to the petition was properly sustained by the «court, and the judgment is affirmed.

Giffen and Swing, JJ., concur.

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SMITH, J.

The judgment of the trial court in sustaining the demurrer of defendant to the petition we think should be affirmed.

In Armstrong v. Kattenhorn, 11 Ohio 265, it was decided that 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. If the possession- can be referred to any other source than the parol contract the statute fails.

The petition sets out a tenancy for five years from January 1, 1891, under a written lease, containing a privilege of renewal for another term of five years at the expiration of the first term. It also sets out that plaintiff in error entered upon Ids fourth term (took possession) as lessee by virtue of a verbal agreement for another term of five years upon the «same terms and conditions as his former' tenancies. This possession it seems to us is referable to the prior mitten lease, and the plaintiff in error became a tenant from year to year and is holding over his term.

Justices of the peace by R. S. 6600 (Gen. Code 10449) having jurisdiction in cases of a tenancy from year to year, the demurrer to the petition was properly sustained by the «court, and the judgment is affirmed.

Giffen and Swing, JJ., concur.

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Bluebook (online)

22 Ohio C.C. Dec. 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-carroll-ohiocirct-1908.