This was an action of forcible detainer commenced in a Justice’s Court, and in which judgment was rendered for the plaintiff, and by the defendant appealed to the-Circuit Court. A trial was had and a verdict was found against the defendant of guilty, upon which judgment was rendered in favor of the plaintiff for the possession of the premises described in the complaint. From this judgment the defendant has appealed to this court. The error assigned relates to certain instructions given, and the refusal to give one asked, and the substitution by the court of another in lieu thereof. Briefly, it may be said that it appears by the bill of exceptions that the evidence of the plaintiff tended to show that the defendant had entered into the possession of the premises without his consent, and without any lease or agreement, written or verbal, therefor, and had refused to deliver the possession of the premises after demand and notice to quit, and had said to the plaintiff that he would “defend his possession with the gun.” On the other hand, the defendant, after denying the complaint, alleged affirmatively, and his evidence as disclosed by the bill of exceptions tended to show, that the plaintiff had verbally agreed to give him a written-lease for the premises for five years for agricultural purposes; and that he consented if he, the defendant, could make arrangements with one Pike, who was then in possession of the premises under a lease which expired within a month, he might enter thereon, and that in pursuance thereof he effected such an arrangement with Pike, and was in possession of the premises when Pike’s lease expired and he quit the premises; but that the plaintiff had refused to make the lease as he had agreed. There was also evidence tending to show the character of his occupation, and the various things he did while thus occupying it, based on the expected or promised lease. It was admitted that ten days before the commencement of the action, the plaintiff had served a written notice upon the defendant, demanding the possession of the premises. This was after Pike’s lease had expired, and the defendant was in the possession of the land. It will be seen, then, that the plaintiff claimed that he was entitled to the possession of the premises when Pike’s lease
Consent necessary to create tenancy. To create that relation, the defendant must have entered into the possession of the premises in subordination to the plaintiff’s title, and with his consent, express or implied. A mere agreement for a lease does not create a tenancy, or give to the party with wrhom it is made a ■ right to the possession (Billings v. Canney, 57 Mich. 425); but where the owner permits a party to go into possession under an agreement for a lease which he afterwards refuses to make, the case' is different,' and the relation of landlord and tenant does exist between the parties. In such case his possession is lawful until it is properly terminated. Our statute provides that an action for the recovery of the possession may be maintained in the case specified in subdivision 2 of section 11, when notice to quit has been served upon the tenant or person in possession for the period of ten days before the commencement thereof, unless, the leasing or occupation is for the purpose of farming or agriculture, in which case such notice must be served for the period of ninety days before the commencement of the action. (Misc. Laws of Or. Code, § 13, p. 615.) Subdivision 2 of section 11, referred to, provides that after a notice to quit, etc., “ or without any written lease or agreement therefor,” shall be deemed a case of unlawful holding by force. Now the defendant contends that his possession or occupation of the premises was with the consent of the plaintiff and in subordination of his title, under a verbal promise or agreement with him to execute a lease for five years for agricultural purposes, which subsequently to his occupation, made in pursuance thereof, the plaintiff refused to make, and that he is, therefore, within the purview of the statute cited,
A trespasser only entitled to ten days’ notice. The court charged the jury that “if they found that the defendant entered into possession of said premises without the consent of William Neppach (the plaintiff), when Neppach was entitled to the possession, then he would be a mere trespasser, and would not be entitled to but ten days’ notice, and it would make no difference whether the premises were agricultural lands or not.” As the plaintiff was entitled to the possession of the premises upon the expiration of Pike’s lease, unless he had given his consent to the occupation of the premises by the defendant, under the circumstances indicated, it would seem to follow, if he had not given such consent, and the defendant had entered and held the possession when the plaintiff was entitled to it, that the defendant was a trespasser, and not entitled to the notice he claims. This is the effect of the instruction, and in this, we think, there was no error. The court further charged the jury that “if they find the defendant entered into the possession of said premises without the consent of William Neppach, but through an arrangement with Pike before Pike’s term expired, then he would be in lawful possession, but would be holding over under Pike’s lease, and consequently, would only be entitled to ten days’ notice, and that it would make no difference whether the premises were agricultural lands or not.” This instruction is based on evidence offered both by the plaintiff and the defendant. But the conclusion which it reaches that the defendant in the case stated would be holding over under Pike’s lease, and only entitled to ten days’ notice to quit, etc., is hardly correct, and is calculated to confuse and mislead. The defendant had no assignment of the Pike lease, and did not stand in his shoes; he simply arranged with Pike to enter into possession according to his verbal agreement with the plaintiff preparatory to the contemplated lease. Pike consenting, they thus occupied together, but when Pike’s lease expired, he quit the premises and thus terminated his lease. The defendant, therefore, could not be holding over under that lease. The consent which the plaintiff gave the defendant to occupy was nugatory, unless Pike con-