LEYY, J.
(after stating the facts as above). The court refused the appellant’s requested peremptory instruction to find for the plaintiff the sum of $350 and for defendant for costs, and peremptorily instructed the jury to find for plaintiff the reasonable cash rental value of the premises for the year 1913. The action of the court is made the basis of complaint by assignments of error numbered 2, 6, and 9, which may be here considered together as presenting the sole controversy, under the pleading and undisputed evidence, of whether appellant was liable to pay appellee for rent for the year 1913 the reasonable rental value of the farm or the fixed sum of $350. The facts are without dispute that appellee is the owner of the land, and that appellant used and cultivated it during the year 1913, and that there was no express contract between the appellant and the appellee or his immediate vendors, the Crumps, as to the amount of rent that appellant should pay for the use and cultivation of the place. And these facts would, it is not doubted, entitle the appellee to recover the reasonable rental value of the premises, as charged by the court, unless it should further be said from the evidence that the lease of December 1, 1908, was a subsisting contract in appellant’s favor, or that there was an implied contract of extension or holding over under the written lease, having the legal effect to make appellant liable only for the fixed sum of $350 as rent. The lease of December 1, 1908, pleaded by appellant and in accordance with the terms of which he claims to be holding the premises for cultivation contains the stipulation that:
“It is, however, further agreed by all parties hereto that should the parties of the first part make a sale of the land herein leased, then and in that event this lease is to immediately become void.”
The language of the parties expresses the assent of each of them that upon the happening of the sale the lease is to “immediately become void.” And by the language of the parties it is thought there is no room to doubt that each party to the lease meant and intended that a sale of the land could be made at any time during the life of the lease, and that such sale of the land when happening was to terminate the lease ipso facto, and it was to expire at once. Therefore it is thought that the stipulation could not properly be given the legal effect of a mere option to declare the lease void and not effective until both parties agreed to exercise the option, as insisted by appellant, but that it is in the nature of a conditional limitation upon the right of appellant to remain, on the premises after a sale had been consummated. Baxter v. City of Providence (R. I.) 40 Atl. 423; Thomason & Son v. Oates, 46 Tex. Civ. App. 383, 103 S. W. 1114. And the fact that the land was farm land, ordinarily used and cultivated by the year, would not legally operate to fix and grant the right of appellant to remain on the premises after the sale up to and until the end of the year, as insisted by appellant, for that the parties by their solemn agreement expressly indicated an intention otherwise to put an end to the tenancy and themselves fixed the time limit that it was to “immediately become void” when the lessors “make a sale of the land herein leased.” The continuance of the right to remain after sale until the end of the year would be entirely inconsistent with the agreement of the parties that the relation of landlord and tenant should cease sooner. The parties to the lease were exercising their legal privilege to contract as they wished, and any hardship in such terms, of contract re-
suits solely from the free will and judgment of the parties. The courts -are not at liberty to make a contract for the parties or change the valid agreements of parties when the language and intention do not admit of and forbid a modification. After the date of sale by lessors the legal result is that the appellant was not longer bound to comply with the terms of the lease, and the lessors were not thereafter bound, each party being legally free of the agreement, and it was unenforceable against either of them. And appearing as a fact, as it does, that the lessor, Talbot, made a bona fide sale by deed of the land on February 14, 1913, and to appellants’ knowledge at the time, the appellant’s right, according to his own agreement, to remain and cultivate the land, expired, and he could predicate no right, as a defense to appellee’s suit, on the terms of the lease as such to remain there and pay only $350 for rent. Failing in fact and in law to sustain his defense of a formal enforceable lease in writing, the appellant’s defense must be further determined by whether or not facts pertaining to the conduct of appellant and of appellee and his vendors, the Crumps, towards each other respecting appellant’s occupancy after the termination of the written lease by sale has the legal result of an implied contract of extension or continuance of the tenancy upon the same terms of rent as those by which the parties to the lease had bound themselves in the original instrument. According to the undisputed facts, the Crumps gave notice to appellant in February and the early part of March, 1913, of their ownership of the land, and insisted that the written lease was vacated by the sale. And in their letter written in February to appellant the Crumps insisted that appellant make an offer and agreement of the amount of rent that should be paid for the year. And in March the ap-pellee made statement to appellant that he was insisting upon rent of one-third and one-fourth of the crops raised. And it appears as a fact without dispute that appellant did not agree with the Crumps to make a new rental contract upon their insistence to do so, but met the proposal of the Crumps with the continued occupation of the land under the claim and insistence that the written lease was valid and subsisting and would hold the premises to him under its terms. It appears as a fact that the Crumps insisted to appellant that the lease was vacated by its terms by the sale, and was not to be continued, and the Crumps did not agree nor assent to appellant’s cultivation of the land under the terms of the lease. And it appears as an admitted fact that:
“There was no contract between the plaintiff and the defendant about any rent, he [defendant] just stayed on the place after plaintiff bought it, and cultivated it.”
Insisting, as the Crumps did in February and early in March, at the incipiency and well after the hold-over by appellant, that the old lease had expired, and that new terms of rent should be made, and insisting in March, as appellee did, that he should be paid a different rent, and insisting, as appellant did, in reply to these demands, that the written lease was subsisting and enforceable in his favor, and refusing to make a new agreement, there affirmatively appears from the facts a want of mutuality between the parties respecting the terms of rent that should govern the continued occupation and use of the place by appellant. The situation was, in fact, a contest and disagreement respecting the amount of rent to be paid; each party insisting upon his claim and demand. In these facts there is not laid, it is thought, the foundation for an implied contract to continue the relation of landlord and tenant according to the terms of rent specified in the written lease.
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LEYY, J.
(after stating the facts as above). The court refused the appellant’s requested peremptory instruction to find for the plaintiff the sum of $350 and for defendant for costs, and peremptorily instructed the jury to find for plaintiff the reasonable cash rental value of the premises for the year 1913. The action of the court is made the basis of complaint by assignments of error numbered 2, 6, and 9, which may be here considered together as presenting the sole controversy, under the pleading and undisputed evidence, of whether appellant was liable to pay appellee for rent for the year 1913 the reasonable rental value of the farm or the fixed sum of $350. The facts are without dispute that appellee is the owner of the land, and that appellant used and cultivated it during the year 1913, and that there was no express contract between the appellant and the appellee or his immediate vendors, the Crumps, as to the amount of rent that appellant should pay for the use and cultivation of the place. And these facts would, it is not doubted, entitle the appellee to recover the reasonable rental value of the premises, as charged by the court, unless it should further be said from the evidence that the lease of December 1, 1908, was a subsisting contract in appellant’s favor, or that there was an implied contract of extension or holding over under the written lease, having the legal effect to make appellant liable only for the fixed sum of $350 as rent. The lease of December 1, 1908, pleaded by appellant and in accordance with the terms of which he claims to be holding the premises for cultivation contains the stipulation that:
“It is, however, further agreed by all parties hereto that should the parties of the first part make a sale of the land herein leased, then and in that event this lease is to immediately become void.”
The language of the parties expresses the assent of each of them that upon the happening of the sale the lease is to “immediately become void.” And by the language of the parties it is thought there is no room to doubt that each party to the lease meant and intended that a sale of the land could be made at any time during the life of the lease, and that such sale of the land when happening was to terminate the lease ipso facto, and it was to expire at once. Therefore it is thought that the stipulation could not properly be given the legal effect of a mere option to declare the lease void and not effective until both parties agreed to exercise the option, as insisted by appellant, but that it is in the nature of a conditional limitation upon the right of appellant to remain, on the premises after a sale had been consummated. Baxter v. City of Providence (R. I.) 40 Atl. 423; Thomason & Son v. Oates, 46 Tex. Civ. App. 383, 103 S. W. 1114. And the fact that the land was farm land, ordinarily used and cultivated by the year, would not legally operate to fix and grant the right of appellant to remain on the premises after the sale up to and until the end of the year, as insisted by appellant, for that the parties by their solemn agreement expressly indicated an intention otherwise to put an end to the tenancy and themselves fixed the time limit that it was to “immediately become void” when the lessors “make a sale of the land herein leased.” The continuance of the right to remain after sale until the end of the year would be entirely inconsistent with the agreement of the parties that the relation of landlord and tenant should cease sooner. The parties to the lease were exercising their legal privilege to contract as they wished, and any hardship in such terms, of contract re-
suits solely from the free will and judgment of the parties. The courts -are not at liberty to make a contract for the parties or change the valid agreements of parties when the language and intention do not admit of and forbid a modification. After the date of sale by lessors the legal result is that the appellant was not longer bound to comply with the terms of the lease, and the lessors were not thereafter bound, each party being legally free of the agreement, and it was unenforceable against either of them. And appearing as a fact, as it does, that the lessor, Talbot, made a bona fide sale by deed of the land on February 14, 1913, and to appellants’ knowledge at the time, the appellant’s right, according to his own agreement, to remain and cultivate the land, expired, and he could predicate no right, as a defense to appellee’s suit, on the terms of the lease as such to remain there and pay only $350 for rent. Failing in fact and in law to sustain his defense of a formal enforceable lease in writing, the appellant’s defense must be further determined by whether or not facts pertaining to the conduct of appellant and of appellee and his vendors, the Crumps, towards each other respecting appellant’s occupancy after the termination of the written lease by sale has the legal result of an implied contract of extension or continuance of the tenancy upon the same terms of rent as those by which the parties to the lease had bound themselves in the original instrument. According to the undisputed facts, the Crumps gave notice to appellant in February and the early part of March, 1913, of their ownership of the land, and insisted that the written lease was vacated by the sale. And in their letter written in February to appellant the Crumps insisted that appellant make an offer and agreement of the amount of rent that should be paid for the year. And in March the ap-pellee made statement to appellant that he was insisting upon rent of one-third and one-fourth of the crops raised. And it appears as a fact without dispute that appellant did not agree with the Crumps to make a new rental contract upon their insistence to do so, but met the proposal of the Crumps with the continued occupation of the land under the claim and insistence that the written lease was valid and subsisting and would hold the premises to him under its terms. It appears as a fact that the Crumps insisted to appellant that the lease was vacated by its terms by the sale, and was not to be continued, and the Crumps did not agree nor assent to appellant’s cultivation of the land under the terms of the lease. And it appears as an admitted fact that:
“There was no contract between the plaintiff and the defendant about any rent, he [defendant] just stayed on the place after plaintiff bought it, and cultivated it.”
Insisting, as the Crumps did in February and early in March, at the incipiency and well after the hold-over by appellant, that the old lease had expired, and that new terms of rent should be made, and insisting in March, as appellee did, that he should be paid a different rent, and insisting, as appellant did, in reply to these demands, that the written lease was subsisting and enforceable in his favor, and refusing to make a new agreement, there affirmatively appears from the facts a want of mutuality between the parties respecting the terms of rent that should govern the continued occupation and use of the place by appellant. The situation was, in fact, a contest and disagreement respecting the amount of rent to be paid; each party insisting upon his claim and demand. In these facts there is not laid, it is thought, the foundation for an implied contract to continue the relation of landlord and tenant according to the terms of rent specified in the written lease. The want of assent or acquiescence on the part of appellee and his immediate vendors affirmatively appearing, as it does, to the hold-over or continuance of the occupation by appellant under same terms of rent provided in the written lease, the court could not presume or imply assent on their part and create a term of agreement shown, in fact, not to have been made from the conduct of the parties. Ives v. Williams, 50 Mich. 100, 15 N. W. 33. It is quite elementary that contracts, both express and implied in fact, are based on consent, and that there isi no legal contract without the consent of the parties. The mere fact that a tenant holds over the premises after the lease has expired does not raise a conclusive presumption that he holds under the' terms of the expired contract. This presumption is merely one of fact, and may be rebutted by proof of a contrary situation. Puckett v. Scott, 45 Tex. Civ. App. 392, 100 S. W. 969. And, under the evidence, if appellant in February, upon demand of the Cramps for a new rental contract, had vacated the premises, the Crumps could have predicated no legal right to hold appellant liable on the terms of the lease for his refusing to longer take the premises for the year 1913. It is because there was no contract between the parties. And likewise ap-pellee’s remedy for the occupancy, in the facts, by appellant, was not upon contract, but on a quantum meruit account, as he sues for the beneficial use which appellant had of the land. An entirely different case would be, however, had the facts only shown, for illustration, that the appellant continued the occupancy after expiration of the lease and at the expiration of the lease had offered to continue the occupancy upon the same specified terms of the lease, and the Crumps and appellee without reply permitted appellant to continue to occupy the place. In these facts, had they been the facts, there is laid the foundation for an implied contract, as the conduct of the Crumps and appellee was, in law, a virtual assent to the terms prescribed by appellant. Therefore it is
thought that the facts of the instant case have the legal result that appellant was using and cultivating the land independent of any contract fixing the amount of rent he should pay, and appellee could sue, as he did, on a quantum meruit account for the beneficial use which appellant had of the land. 2 Page on Contracts (Ed. 1905) § 846.
By the first assignment appellant complains that the court erred in not sustaining a general demurrer to plaintiff’s petition. It is believed that the petition declares upon a valid cause of action within the jurisdiction of the court to try.
By the third assignment of error complaint is made of the refusal of the court to permit the evidence of the witness Talbot respecting an executory contract for the sale of the land with C. <3. Crump on January 20, 1913, and that after the execution of the contract there was appended thereto a provision to the effect that the sale of the land should be made subject to the lease of appellant. It is concluded that the court committed no error prejudicial to the appellant, and the assignment for that reason should be overruled. It appeared indisputábly that this executory contract was superseded by the deed of Mr. Talbot to A. G. and C. C. Crump on February 14,. 1913. This deed in legal contemplation constituted the final contract for the sale of the land. The deed contained no reference to the lease of the land. And appellant was not a party to the extension of the life of the lease, and does not appear to have known and consented at the time to the change. The original lease providing that it should be inoperative on a sale, appellant was a necessary party to a modification or change thereafter; and, unless he agreed or consented thereto, any change, extension, or modification of the original would not be binding on him or affect his legal rights in the lease.
The fourth assignment complains of the refusal of the court to permit the appellant to prove by the witness Bloxham to the effect, as stated in the brief, that he had bought Mrs. I-Iaynie’s interest in the rents coming to her under the written lease for the full term of five years, and had received the rents for 1911 and 1912, and expected same for the year 1913, and that about May or June, 1913, he sold the lease to A. G. Crump for $175 cash. Appellee objected to the evidence on the ground that it was irrelevant and because Bloxham was making no claim upon appellant at this time for rents. It is not believed the ruling constitutes reversible error. Providing, as the lease did, that it was to become void on a sale of the land, Bloxham would be held to have taken the interest of Mrs. Haynie subject to a termination of the lease on the happening of the sale. His rights in the lease would be no greater than Mrs. Haynie could convey. Consequently Bloxham’s acquisition of Mrs. Haynie’s interest was, as against appellant, in the nature of speculation or chance as to the duration of the lease. The appellant, the lessee, could not be compelled by a new owner to hold the place against his agreement. And the termination of the lease by its own terms on a sale terminated for all purposes the relation of landlord and tenant, and the appellant was not thereafter liable on the lease contract for rent to Blox-ham or his assignee. Bloxham* was entirely dependent on his lease contract for his rights. If Bloxham had a remedy at all after the termination of the lease for the rent of 1913 paid to Mrs. Haynie, it was not against appellant, but against Mrs. Haynie or her estate in the nature of a debt for money had and received.
The further contention of appellant is not thought tenable, that after the transfer of her interest in the lease Mrs. Haynie’s interest in the land ceased to the extent of the life of the lease, and that neither she nor her devisee could forfeit the lease by a sale of the land during the five-year life of the lease.
It is thought that what has been discussed above sufficiently decides that the remaining assignments of error, numbered 5, 7, 8,. 10, 11, and 12, should be overruled, as not affording ground for reversal, and they are accordingly overruled.
Affirmed.