On Petition For a rehearing.
Crumpacker, J.¥e are urged, in a very earnest and exhaustive brief in support of a petition for a rehearing, to reconsider the questions decided in the original opinion, but after due consideration of the reasons advanced by counsel, our convictions remain unchanged. There are questions presented by the record, however, which were overlooked in the original opinion, and a rehearing is asked upon this ground also. The first of these questions has reference to the action of the court in sustaining a demurrer to a special paragraph of reply, which alleged in substance, that appellant went *98into possession of nearly half the land in question, raised a crop thereon and delivered to the appellee his share of such crop as,rental, but appellee refused to surrender possession of the balance of the land, and for this refusal damages are claimed. It is insisted that this paragraph of reply showed such a part performance of the contract as to take it out of the Illinois statute of frauds.
It is not generally settled whether, in any case, part performance of a parol lease will take it out of the operation of the statute. The Supreme Court of this State, in the case of Wolke v. Fleming, 103 Ind. 105, said : “ It is difficult to conceive any reason why the doctrine of part performance does not apply to a lease,” yet the court admitted there was some conflict of opinion upon the question and expressly declined to take any authoritative stand respecting it, because not compelled to do so in the decision of that case. Whatever the rule may be generally, the current of authority, both in this country and England, declares that the mere taking possession by the lessee and the payment of rent do not amount to such part performance as will arrest the operation of the statute.
The English rule is that a parol lease in contravention of the provisions of the statute, under which possession is taken, creates a tenancy at will, and payment of rent thereunder converts it into a tenancy from month to month or year to year, according as the rental period may be indicated by the payments. Clayton v. Blakey, 8 T. R. 3; Browne Statute of Frauds, section 38.
In many of the States in this country the English rule is adopted, while in others the only tenancy created under such circumstances is one from year to year, the contract controlling the rights and obligations of the parties in all particulars, except as to duration. Warner v. Hale, 65 Ill. 395; Wheeler v. Frankenthal, 78 Ill. 124; Creighton v. Sanders, 89 Ill. 543; Brownell v. Welch, 91 Ill. 523; Drake v. Newton, 23 N. J. L. 111; Scotten v. Brown, 4 Harr. 324; *99Cody v. Quarterman, 12 Ga. 386; Evans v. Winona Lumber Co., 30 Minn. 515; Laughran v. Smith, 75 N. Y. 205; Morrill v. Maekman, 24 Mich. 279; Dumn v. Rothermel, 112 Pa. St. 272; Morehead v. Watkyns, 5 B. Mon. 228; Koplitz v. Gustavus, 48 Wis. 48.
Under the statutes of this State, tenancies at will can only be created by express contract, and all general tenancies in which the premises are occupied with the consent of the owner, either express or implied, are tenancies from year to year. Section 5208, R. S. 1881. When one takes possession of real estate under a non-enforceable lease, his possession is with the consent of the landlord, consequently a tenancy from year to year is created. Railsback v. Walke, 81 Ind. 409; Nash v. Berkmeir, 83 Ind. 536.
In all the cases above cited the underlying principle is that while the lease confers no enforceable right upon the lessee, yet his possession thereunder is with the consent of the landlord, and such consent characterizes the situation of the occupant as that of a tenant and not a trespasser.
It is clear, upon familiar principles of law, that the rights of the tenant under such circumstances extend only to the premises actually occupied by him. In the case in judgment appellant occupied a portion of the premises, and paid rent only for that portion. This occupancy and payment of rent gave him no right to the balance of the premises, nor did he have any right thereto under the contract, consequently the special paragraph of reply was demurrable.
It is next insisted that the court erred in instructing the jury upon the effect of the evidence proving the Illinois statute. • This statute was read to the jury from a book purporting to have been published by the authority of the State of Illinois in the year 1874, and the court- instructed that proof of the enactment or existence of the statute in 1874 was presumptive evidence that it was yet in force at the time the contract was made, to wit, April, 1888, but that such presumption was not conclusive and would yield to counter*100vailing evidence. It is contended by counsel for appellant that it was incumbent upon the appellee to show affirmatively that the statute was still in force at the date of the contract. The courts are warranted in reposing confidence in the permanence and stability of the laws of foreign States to the extent that when a foreign statute is proven to have existed, it will be presumed to remain in force, in the absence of evidence showing its repeal.
Filed June 11, 1892.Other questions discussed by counsel must, in view of the special findings, be regarded as immaterial.
The petition is overruled.