Breher v. Reese

Lacey, P. J. The only question in the case is, did the court err in rejecting the evidence offered. As to the first evidence offered, that the appellant went into possession under a verbal contract for purchase or gift of the land, we think that it was properly rejected; for without stopping to inquire whether such a verbal agreement could be set up, in an action of law, to defeat recovery as against our statute of frauds and perjuries, we are clearly of the opinion that the acceptance of the lease by the appellant from her father would estop her from afterward setting up the original agreement, and the acceptance of this lease she scarcely denies, but simply says she never saw and never signed it; but this in face of her admission on the trial before the justice of the peace that she held the land under the lease, which admission she did not deny, is sufficient when not contradicted or offered to be contradicted to establish the fact that she did so hold. But this objection ■ does not seem to be very much relied upon to reverse the judgment. But the main cause for error, the refusal of the .court to allow appellant to prove a verbal agreement made in the fall of 1883, between Vogel, the then owner of the land, and appellant, to extend and change the terms of the lease as ' regards the ownership of the crops to be planted in the fall of 1883, and the assurance by Mm that she might remain and harvest them, is mainly relied on to reverse the judgment of the court below. We have examined the question with the care its importance seems to demand, and have come to the conclusion that the court below committed no error in its exclusion. If the evidence would have been proper in case Vogel had remained the owner of the land and had been the plaintiff in the forcible detainer suit, it would have been proper in the case as it stood with appellee as plaintiff and assignee of the term ; otherwise not. This brings up the question whether a written executory lease, under seal, can be changed by a subsequent verbal contract between the parties to such lease, made during the existence of the lease, and whether this agreement amounts to a change of the terms of the lease. However oppressive the rule may sometimes work, and however much there may be a want of soxxnd reason for the .continuance of the rule, we are compelled to recognize the law as it is, and to hold that such is the law in this State, and that no such change of a wi'itten lease, under seal, while executory, can be legally made. The question has been abundantly settled by the Supreme Court, in this State, and will be seen by reference to Loach v. Farnum et al., 90 Ill. 398; Baker v. Whiteside, Breese, 174; Chapman v. McGrew, 20 Ill. 101; Barnett v. Barnes, 73 Ill. 217. In this case the lease was for the term of one year, running from 1st March, ’83, to 1st March ’84. The effect of the agreement made while the lease was executory was to change it from a lease for one year to one for a longer time, or to abrogate it entirely and create a new lease commencing in the fall of 1883, running till some time in the summer after harvest of 1884, or extending the time of the old lease with an agreement to sow fall crops, in fall 1883, either of which was a change of 'the original lease, which was still in force at the time the new agreement was made. By the old lease no fall crop was to be planted, by the new one there was to be wheat sown. By the lease the term expired the first of March, 1884, by the new parol agreement not till after harvest. Therefore the new agreement, if one could have been shown, was void under the rule of law that an existing executory agreement, under seal, can not be changed by an agreement not under seal. Appellant’s counsel seeks to maintain his position by claiming that appellants had license to plant the fall crops and should not be turned out after they were planted till harvested, but the answer to this is that the license granted by the agreement to extend tlie lease was as void as a license as an agreement. The original lease must govern, and by that the tenancy expired on the 1st day of March, A. D. 1884. We perceive no error in the record and therefore affirm the judgment of the court below. Judgment affirmed.