Opinion of the court by This was an action in forcible detainer, brought on appeal to the district court of Noble county. The property in controversy was a town lot in the city of Perry, the title of which was still in the United States, and for which both plaintiff and defendant were contestants before the interior department. The defendant, Williams, was in actual possession and the plaintiff, Pressler, claimed that he was occupying as a tenant, and that the lease had been terminated by notice. The defendant denied the relation of landlord and tenant, and claimed possession by right of occupancy and improvement. There was but one issue properly made at the pleadings. The plaintiff alleged that she by an oral contract leased the lot to the defendant, and that he had refused after notice to vacate or surrender possession. The defendant denied that he occupied as her tenant, or ever recognized her right to the lot. The evidence as to the oral contract was very weak, and was positively denied by the defendant.
The case was submitted to the jury under proper instructions, and the jury returned a verdict for the plaintiff. The defendant filed a motion for new trial, and set up among other things, improper conduct of the jury, in arriving at a verdict. The case-made contains this statement: *Page 124
"Attached to the said motion is the following original statement and agreement of the said jurors made and signed by them while in their jury room, and while considering of their verdict, and on account and because of which their said verdict was reached:
" 'We, the jurors in this case, which are hung out for defendant in this case, agree that if the other nine jurors will sign their names to a statement saying that they do believe the defendant in this case has wilfully testified to a lie, we will give in and vote for plaintiff.'
"CHAS. S. HOLCOMB, "E. J. GLENDENING, "S. KEEL.
" 'We, the nine jurors in this case whose names are here below attached, do believe that the defendant did wilfully and knowingly swear falsely in the case now pending.'
"M. JEROME, "H. H. FOREMAN, "W. R. EMMONS, "J. T. BURKE, "F. W. PRATT, "J. T. CLARK, "J. H. JOHNSON, "W. H. CARTER, "J. L. BUTTERFIELD."
From the statement in the record, it appears that these statements were made out and signed by the jurors during their deliberation, and by reason of these statements a verdict was reached. Can it be said that the verdict afterwards delivered in the court was the result of the free, deliberate and unbiased judgment of all the jurors? The three must have had some ulterior purpose in requiring the *Page 125 other nine to sign a written statement that they believed the defendant has testified wilfully and knowingly falsely. If they believed this, what difference could it make to them whether the other nine believed it or not? Their proposition is not to agree with the nine for the plaintiff because they believe or have become convinced that the nine were right, but the proposition is a conditional one, the effect of which is, that if the nine jurors who are against the defendant will sign their names to a written statement, saying they believe that the defendant has wilfully lied, they will then consent to a verdict for plaintiff. In view of the conflicting character of the evidence, and the weakness of plaintiff's testimony, we cannot say that the verdict is the result of deliberate judgment. Both plaintiff and defendant having submitted their cause to the jury, and the court having properly instructed them as to the law, they were each entitled to the free, deliberate, conscientious judgment of each and every juror upon the facts, uninfluenced and unbiased by any agreements or considerations whatever. This they did not have in this case. The verdict was the result of a barter or challenge. Nothing short of a free and deliberate finding made upon a conscientious conviction of the judgment of the jurors, will satisfy the law. (Mersers v. Shine, 37 Iowa, 253.)
In the case of Ryerson v. Kitchell, 3 N.J. Law, 998 the jury after deliberating for some time and being unable to agree, agreed to leave it to two of the jurors to go by themselves and agree, and if the two could not agree, then the two were to select a third juror as umpire; the two failing to agree selected the third, and these three agreed to find no cause of action. The jury then returned a verdict *Page 126 in conformity to the finding of these three jurors. The court said:
"This transaction was unlawful and the judgment rendered on a verdict obtained in this manner cannot be supported."
Supporting the same general doctrine are Snow v. Hardy,3 Minn. 77; Richardson v. Coleman, 131 Ind. 210; Randolph v.Lampkin, 90 Ky. 551; Henderson v. State, 12 Tex. 532; Knightv. Fisher, 15 Colo. 176; Dormer v. Palmer, 23 Cal. 40; Burke v.Magee, 27 Neb. 256; Lee v. Clute, 10 Nev. 149.
The judgment of the district court of Noble county is reversed, with direction to grant a new trial.
Hainer, J., who presided in the court below, not sitting; all the other Justices concurring. *Page 127