Decided May 18,1909.
On Petition for Rehearing.
[101 Pac. 671.]
Mr. Justice Slaterdelivered the opinion of the court.
4. The defendant Olsen urges that one who is in possession of property and takes a lease is not estopped to deny a landlord’s title, that the estoppel of the tenant to deny the landlord’s title does not exist after the expiration of the lease, and that the lease in question is for a part only of the premises, and therefore the estoppel would not run at all. None of these contentions has any merit as applied to the facts of this case. In support of the first of these contentions, Pearce v. Nix, 34 Ala. 183, Franklin v. Merida, 35 Cal. 567 (95 Am. Dec. 129), and Crocket v. Olthouse, 35 Mo. App. 404, together with some other cases from the same states, aré cited; but none of them are applicable to the facts of this case, and, so far as they refer to the general rule, first above contended for, they appear to be in conflict with the great weight of authority as stated by 18 Am. & Eng. Enc. Law (2 ed.) 415.
In the main opinión we sustained the motion to dismiss upon the grounds of estoppel, but we are now satisfied that it may be put upon a broader ground, to-wit, that the legal effect of the giving and the taking of the lease amounted to a satisfaction of the decree. The suit is in the nature of an equitable action of ejectment, and the effect of the decree was to require Olsen to vacate the premises, but he failed to comply therewith, and, upon the petition of Parelius, was charged with contempt of court. The court then had power to compel him to observe and conform to the decree, and granted him five *598days to do so; but within that time the lease in question was entered into, and thereupon a new relation was created between the parties, which deprived Parelius of the right further to invoke the aid of the court under the decree to recover possession, and this would be so although the term of the lease had expired. To obtain possession he would be compelled to resort to a new and independent proceeding.
It was held in Hough’s Lessee v. Norton, 9 Ohio, 45, 48, that if, after a recovery in ejectment, the lessor of the plaintiff contracts to sell or leases the premises to the defendant, the tenant in possession, he cannot subsequently revive the judgment by scire facias. It is there said: “When the tenant takes the lease, he admits the right of the landlord, and for the recovery of rent the landlord must look to the covenants of the lease. From the time of the execution of the lease, the relative situation of the parties is changed. The possession of the tenant is not adverse to, but in accordance with, the rights of the landlord. His possession for many purposes will be considered as the possession of the landlord, and the latter has, in fact, derived all the advantage from his judgment which that judgment was intended to secure.” The principle there enunciated is applicable here.
The petition for rehearing will therefore be denied.
Dismissed: Rehearing Denied.