Lewis, J. (after stating the facts). The manner in which the record in this case was prepared has much obscured the merits of this appeal, and entailed unnecessary labor upon the court. We find in the record proper what purports to be the original answer, in which there is a paragraph, numbered 3, which has been crossed out by ink lines. In the bill of exceptions we find what purports to be paragraph 3 of the answer, differing, in material allegations, from the marked-out copy in the record proper.
In appellant’s brie» the marked-out paragraph is set out as paragraph 3 of th™ answer. So, in the bill of exceptions we find what purport™ to be a part of the amended answer, containing allegation™ not found in the amended answer, as disclosed by the recorc'H proper.
In the appellant’s brief the matter contained in thcH bill of exceptions is set out as part of the amended answerH Unless counsel will exercise such a degree of care in th« 141 preparation of their transcripts for appeal as will make it unnecessary for the court to waste time in determining what, may properly be considered on appeal, it will be necessary to adopt a rule to strike from the files records in the condition in which we find this one.
As the appellee has replied to the contentions and the statements of appellant in his brief, without indicating objection thereto, we have considered the questions as they are suggested by the brief of appellant. Landlord and Tenant. Relation of 1. The first question requiring determination is ¡whether the relation of landlord and tenant was established between the parties. If so, this action of unlawful detainer is maintainable; otherwise, it is not. McCauley vs Hazle-wood, 8 C. C. A. 341, 59 Fed. 877.
The appellee is a citizen |of the Chickasaw Nation; the appellant, of the United States. ppellant’s contention seems to be that as appellee was not |Ln possession of the demised premises at the time of the ontract with appellant, and had at that time only the right herein that was common to all the other members of the hickasaw tribe, the relation . of landlord and tenant could ot arise by virtue of the agreement between the parties, he reply to this contention is that appellee, while possess-ng no greater right than any other citizen of that nation, et had the legal right, under the laws of his nation, to ccupy the land demised to appellant, and to hold it after uch occupancy against any other person.
This right is, in sense, an estate sufficient to support a contract with regard o 51. But the relation of landlord and tenant does not rest pon the landlord’s title, but upon the agreement between he parties, followed by the possession of the premises by |he tenant under such agreement. This is shown in the rule, 'Id as the law, that the tenant will not be permitted to dis-ute the landlord’s title.
So, in McGuire vs Cook, 13 Ark. 48, cited by appellant, it is said: “A bare possession with-ut right will be protected if invaded by force, or held over 142 by a tenant by virtue of bis contract. ” ' Appellee pleaded and proved, and appellant answered and admitted, a contract between tbe parties, whereby appellant obtained possession of, and still claims, the premises in controversy, in consideration whereof he was to pay a certain rental, and, at the end of a fixed term, to surrender the possession of the premises.
Such a contract raised between them the relation of landlord and tenant, and was sufficient to sustain this action, if a cause of action were otherwise shown. Landiora ana, ment of rentT Unlawful De-tainer. Defense. 2.
Appellant, in reply to appellee’s demand, pleaded in substance, that at the time of the execution of the contract of lease for the premises in controversy, and as a part of said contract,, appellee guaranteed appellant a free and unlimited use and range of the lands on either side of the land occupied and put in by appellant, for the space of a quarter of a mile, for the purpose of range and pasture] each party to the contract pledging themselves, as a consideration of the contract, that neither would fence or enclose or in any way interfere with the space of open land around saidj premises ; that the same was valuable for grazing and for range, and that appellant made said contract, in a greatl measure, on account thereof, as appellant had then 100 head of horses and cattle to use in said range ; that appellee, inj violation of that portion of the contract, fenced in and allow ed others to do so under his authority and direction, thre-sides of the premises demised to appellant, almost complete ly closing him in, and destroying, in a great measure, th range, and damaging him in a sum much larger than tin annual payment stipulated to be paid for the years 1894 an 1895, and also damaging him in the sum of $1,000, actúa damages; that appellant paid appellee the first four annua payments, under said contract, and only refused furthe: payments because of appellee’s wrongful breach of said con tract in this particular.
A demurrer to this answer wa: sustained by the court, which action is assigned as error 143 The lease contract was not void under the statute of frauds, because not in writing, for the reason, among others, that that the contract alleged was made before the adoption of the statute of frauds in the Indian Territory, and could not be affected by it. McClellan vs Pyeatt, 66 Fed. 846. No question was made in the trial as to the validity of the lease under the Chickasaw laws.
If such laws were violated, the parties were in pari delicto, and appellee would not be permitted to derive advantage from his own illegal acts. White vs Brown, 1 Ind. Ter. 98. Appellee claimed, in his testimony, that it was stipu-ated in the contract of lease that, upon failure to pay the rent when it became due, the lease should terminate. We think the answer presented a legal defense to the appellee’s claim, and that the court erred in sustaining the demurrer thereto.
In the case of Collins vs Karatopsky, 36 Ark. 328, it is said : “In this case the rent of November was payable in advance, and, by the terms of the lease, must be paid by the fifth, or the lease would terminate.
If, on the first of November, the defendant had been damaged to the extent of ;he rent then payable by the plaintiff’s failure to perform is own agreement, or by eviction from the whole or a naterial part of the .premises for any portion of time by the essee, he might show that to excuse the nonpayment of rent m the first of November, thus avoiding a forfeiture of the emainder of the term.
Such a defense would be made at is peril, but would go to the gist of the action, as it would, jf successful, defeat the landlord’s right to immediate pos-ession. ” Rights of common may be the subject of a lease.
Wait, Act. & Def. 198, If it should be regarded that such light of common, in the exact and technical use of those rms, could not exist with reference to the lands extending r a quarter of a mile in each direction from the inclosed iremises occupied by appellant, it, at least, must be held at appellant could make a valid contract that he would not 144 exercise his right as a member of the Chickasaw Nation to fence the uninclosed land lying within the stipulated distance from appellant’s premises; and that, for the breach of this agreement, he would be liable.
By section 4170, Mansf. Dig., it is provided : ‘ ‘Whenever a half year’s rent or more is in arrear from a tenant, the landlord, if he has a subsisting right by law to re-enter for the nonpayment of said rent, may bring an action to recover the possession of the demised premises. ” On another trial of this cause, the jury should be instructed that by a subsisting right by law to re-enter is meant a right existing because of the failure to pay rent, for which' there is not lawful and sufficient excuse.
Whether such excuse exist in this case depends upon the finding of fact upon the issue raised by the plea considered. Loss of poss-fession of t6nant 3. Appellant set up»that he had made improvements of much greater value than the sum due for unpaid rents under the contract between himself and appellee, authorizing the erection of such improvements, for which appellee agreed to pay him the full value, if appellant should lose possession thereof before the expiration of his term.
A demurrer to this answer was sustained by the court, and this ruling is assigned as error. We do not think the courl erred in sustaining the demurrer to this part of the answer. as the covenant to pay for the improvements, if appellam should loose possession before the expiration of his term could not be held to apply in case the loss of possessioi came through appellant’s own acts, causing a forfeiture o: his unexpired term.
If appellant, as lessee, has made im provements under a contract of which, in equity, he if entitled to have specific performance, he can plead sucl facts in a separate action, or in an answer in this case upof a transfer to the equity docket. Brockway vs Thomas, 36 Ark. 518.
As he cannot, however, have a specific perform anee in equity without himself doing equity, — in other words without being clear of wrongful default on his own part, 145 the issue in this case, it would seem, must turn upon the determination of the question whether or not it was stipulated that the remainder of the term should be terminated upon a failure to pay rent, and upon the further question whether or not such failure was justified by proof of facts as- set out in the paragraph of the answer first considered.
Such facts, if they existed, and if the damages resulting from the breach 3here pleaded equaled the unpaid rent, would constitute a lefense to this action in law; and, if they do not exist, appellant’s default in the payment of rent would, doubtless, not ie excused in a suit for specific performance in equity. Tender of defaulted rent in court. Demand for possession. Time. 4.
After vérdict in this case, and before judgment lad been entered, appellant, in the language of the bill of ixceptions, “tendered in open court the amount of the ver-lict found by the jury, and the costs, and moved the court o set aside the judgment for possession in favor of plaintiff;” nd the court, being fully advised in the premises, overruled ,nd denied said motion and tender.
Section 4174, Mansf. )ig., provides that if the defendant, before judgment is ;iven, either tenders to the landlord, or brings into court diere the suit is pending, all the rent then in arrear, and all osts, all further proceedings in the action shall cease. We ifer from the bill of exceptions that appellant brought the íoney into court.
By bringing the money into court, we nderstand the statute to mean that the tenant shall bring it and deposit it there, to await the final order of the court, of this court upon appeal. This was not done, and there-re the statute was not complied with. Should appellant desire, it is open to him to renew his tender in proper way lereafter. Whether or not the tender, if in other respects fficient, would have been in time when made before judg--ent, but after verdict found, it is not necessary now to termine.
The demand in writing made two days before e institution of the suit was a sufficient compliance with ction 3348, Mansf. Dig. The judgment will be reversed for e error indicated, and the cause remanded,
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