Petition eor Rehearing.
(193 Pac. 915.)
On petition for rehearing. Denied.
Mr. C. M. Idlemcm for the respondent Obermeier.
Mr. Conrad P. Olson and Mr. R. R. Duniway for respondent Mattison.
Mr. A. H. Tanner and Mr. John Van Zante for appellants.
BURNETT, J.9. The petition for rehearing is substantially a criticism of the terminology employed by Mr. Justice Benson to characterize the new relation assumed by the plaintiff in the contract he made with the defendant Mattison as described in the complaint. The substance of the petition is that in saying the plaintiff had “attorned” to Mattison we had assumed the full consummation of the relation of landlord and tenant between Obermeier and Mattison, overlooking the requirement that the tenant for years must be established in the possession of the land, failing in which the tenancy is not accomplished. In other words, there is no landlord and no tenant until the latter takes possession, and hence no attornment is possible. This may be granted, if we are to be governed by extreme strictness in language. One definition of “attorn” according to Webster is “to agree to become tenant to one as owner or landlord of an estate previously held of another.” The Standard Dictionary says “attorn” means “to agree to recognize a new owner of a property or estate and promise payment of rent to him.” In this sense, that is exactly what Obermeier did, as portrayed in the contracts he pleads.
Contracting with Van Zante, the plaintiff had entered into what his pleading terms a lease, executory, indeed, because the implied covenant for quiet enjoyment was yet not fulfilled. At this stage he agreed to become the tenant of Mattison concerning the same estate about which he had contracted with Van Zante., which latter agreement was not yet fully executed for like reason as before.
10. As delineated in the complaint, the substance of the matter is that a lease had been made between Obermeier and Van Zante. The only remaining liability resting on the latter was to install the former *212in possession. Pending this,/ Mattison bought the land subject to the lease already made. To this Obermeier assented by making a new lease with Mattison for the same land. He did more. For $100, the receipt of which was acknowledged, he released Van Zante. He accepted that sum “as a full and complete settlement of any delay in obtaining possession of said premises and as a full settlement of any controversy that might grow out of said matter between said lessee and John Van Zante.” It would seem that' this amounts to a novation. By taking title to the land subject to the lease and contracting for the modification of that lease, Mattison- became bound by the resultant agreement, which also Obermeier accepted by joining therein. The release of Van Zante by payment of $100 exonerated him and leaves Obermeier and Mattison as the only parties concerned about anything ■ occurring after the new lease was formulated. From his participation in the negotiations resulting in the convention between Obermeier and Mattison, from his payment of the $100, and from the fact that the release was for his benefit, all as appears from the complaint, we must assume that Van Zante also agreed, to the new relationship thus established. The result is a novation eliminating him and thenceforward- involving only Obermeier and Mattison.
Of course, this result depends upon the actual validity of the contract made and signed by Obermeier and Mattison,-known as Exhibit “B,” attached to and made a part of the complaint. Obermeier assays to attack this on the ground of fraud. Reluctantly, as being good after verdict and in the absence of demurrer, Mr. Justice Benson tolerated the averments of the complaint aiming to charge fraud. As there must be a new trial, it becomes *213proper to discuss that feature of the complaint; for, if the litigation is to be renewed in the Circuit Court, questions will arise about the sufficiency of the pleading.
11-13. If the making of Exhibit “B” was induced by fraud perpetrated upon Obermeier, the instrument is void and constitutes no obstacle to the enforcement of the previous lease or recovery from Van Zante on his implied covenant therein. If void, Obermeier cannot recover anything from Mattison for its breach, for his relation to the land could not be affected by it. The mere signing of the instrument caused him no damage. The most he can claim as against Mattison is to be relieved from the fraudulent contract. He cannot destroy it and enforce it, too. If he would reform it so as to restrict the release of Van Zante to the damages accruing previously and enforce it as reformed, he must seek the equity forum. Such a result cannot be worked out on the law side. Van Zante and Mattison are not jointly liable, for they did'not contract jointly in leasing the property. Aside from questions arising out of his agency for the mortgage company, the former is liable for all the damages accruing, unless he is excused by the release in Exhibit “B.” Mattison cannot be liable except by virtue of Exhibit “B,” for that is all she ever agreed to with Obermeier.
14. In pleading fraud in a case of this sort it is necessary to state that the representations were false, setting out what the truth was in order that the court may draw the conclusion of falsity; that the one making them knew they were false or made them recklessly; that they were made with intent to defraud; and that the party,, seeking relief from the fraud relied upon the false statements and was thereby deceived. The precedents for this doctrine *214were collated anew by Mr. Justice Moore in Lindstrom v. National Life Ins. Co., 84 Or. 588 (165 Pac. 675).
If Obermeier knew the premises were in possession of another, he was not deceived by and did not rely upon the alleged representations of the defendants that the land was unoccupied. The language releasing Van Zante is plain. There are no ambiguities in it to explain, and unless fraud is properly alleged and proved, the release must stand as stated in this action at law. We cannot add new terms to it or undertake to enforce it in the would-be-ámended fbrm.
The costs and disbursements both in this court and in the Circuit Court will abide the event of this action.
The.petition for rehearing is denied.
Reversed and Remanded. Rehearing Denied.
McBride, C. J., and Benson and Harris, JJ., concur.