it were otherwise, and if the government could, in any aspect of the case, claim the benefit of the legal estoppel, it would be prevented from doing so by its own patent granted to Egerton. That would present the case of estoppel against estoppel, which, Lord Coke says, setteth the matter at large. No one can set up an estoppel against his own grant. Whoever else, therefore, might set up the estoppel against Egerton's title to the lot in question, the government could not do so."

The defendant had the use of the premises from the time he gave the appeal bond. This use of the premises belonged to the plaintiff. The defendant gave the bond, among other things, for the purpose of obtaining this advantage, which he did obtain thereunder. He cannot say that he had no right to stay the execution. If the conduct of Ettenheimer was such as to have estopped him against other parties, it cannot have that effect in favor of these defendants, who are estopped to deny their liability. Being estopped to deny their liability, they are also estopped to urge anything that would have that effect.

The fact that the statute under which it was attempted to take the appeal was unconstitutional and void does not change. the rule. "The principles of estoppel apply where the proceedings are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as where they are sought to be impeached upon other grounds": Tone v. Columbus, 39 Ohio St. 281, 48 Am. Rep. 438; Daniels v. Tearney, 102 U. S. 415, 26 L. ed. 187.

2. It is objected that the bond was not executed so as to bind the company. The name of the company is signed, "per A. W. Miller, Agt." A power of attorney was in evidence which appoints "R. S. Mockett and A. W. Miller and E. P. Hovey," attorneys in fact for the company, to execute bonds. It also contains the clause: "It being the intention of this power of attorney to fully authorize and empower the said R. S. Mockett and A. W. 152 Miller or E. P. Hovey to sign the name of said company."

It is, insisted that this power should be construed to authorize R. S. Mockett to act in connection with A. W. Miller, or in connection with E. P. Hovey, and does not authorize Mr. Miller to act alone for the company. We cannot so construe it. There is no provision that the three agents, or any two of them, must act together. The bond appears to be duly executed.

The former judgment of this court is vacated, and the judg ment of the district court affirmed.

If a Bond is Given on an Appeal from a judgment in forcible entry and detainer, recovery may be had thereon, although the statute under which the bond was given has subsequently been declared unconstitutional, provided the obligor has thereby been enabled to retain possession of the premises: Stevenson v. Morgan, 67 Neb. 207, 108 Am. St. Rep. 629.

An Unsuccessful Plaintiff in replevin who has seized goods belonging to the defendant is estopped, together with his surety, in an action upon the recognizance, from alleging, or being benefited by, the fact that it was entered into before a magistrate other than the one who signed the writ of replevin: Douglas v. Unmark, 77 Conn. 181, 107 Am. St. Rep. 25.

PUSEY v. PRESBYTERIAN HOSPITAL.

[70 Neb. 353, 97 N. W. 475.]

LANDLORD AND TENANT.-Tenancy from year to year is not created against the contrary intent of both landlord and tenant, by the mere payment of rent, and such payment is but evidence of the intent of the parties. (p. 790.)

LANDLORD AND TENANT-Payment of Rent as Renewal.— Payment and acceptance of money as rent, after the expiration of a fixed term, does not, of itself, renew the term, but is merely evidence of an intent to renew. (p. 790.)

LANDLORD AND TENANT-Statute of Frauds.-Leases for More than One Year cannot be made except in writing and if by an agent, he must be authorized by writing. (p. 790.)

L. F. Crofoot and E. H. Scott, for the plaintiff in error.

W. Switzler and C. St. Clair, for the defendant in error.

353 AMES, C. This is an action for forcible detainer begun in justice's court and brought here by proceedings in error from a judgment in favor of the defendant rendered upon appeal in the district court.

The sole question of importance is, whether the findings and judgment appealed from are supported by the evidence. The facts are not appreciably in dispute. The defendant was lessee of the premises for the term of five years, beginning on the seventeenth day of December, 1896. The rent reserved was thirty dollars a month, payable monthly, and an obligation of the lessee to make certain repairs. The repairs were made and the monthly installments accruing during the term

were paid as stipulated. On or about the thirteenth day of January following, the superintendent of the defendant sent to one N. P. Dodge, an agent charged with the collecting 354 of rents for the lessor, a check for thirty dollars, together with a receipt or "voucher" reciting the sum mentioned to be in payment of "rent for January." Dodge executed and returned this document, and retained and cashed the check without present objection. Subsequently, under a date not given, but apparently within a few days, Dodge wrote and transmitted to the defendant the following letter:

"Board of Directors, Presbyterian Hospital, Omaha, Neb. "Gentlemen: The lease of the hospital for the term of five years expired on January 1, last. As the rent under the terms of the old lease was merely nominal, in consideration of your making extensive improvements on the building, the trustee of the property will expect an increased rental in future. He realizes that you have performed your part of the covenants in the lease and he would undoubtedly be pleased to rent it to you for a further period, to be agreed upon between us. Hoping you will give this matter your earliest attention, I remain,

"Very truly yours,

"N. P. DODGE, JR."

Soon afterward one McClelland, the president and principal owner of the defendant corporation, called upon Dodge and stated that "he was negotiating for a change of management or sale of the Presbyterian Hospital (the defendant), and these negotiations were not closed, and that until they were he would be unable to enter into any negotiation for a new lease." This discussion concerning a new lease and concerning the amount of rent to be reserved, if one should be entered into, was continued between Dodge and representatives of the defendant until March 20th, and afterward, and on that date the plaintiff served the following notice upon the defendant:

"To the Presbyterian Hospital of Omaha:

"You are hereby notified to quit and deliver up to me the premises now occupied by you, situate at 2564 Marcy street, and described as follows, to wit: lot 7, block 2, Marsh's addition to the city of Omaha, in Douglas county, Nebraska, and 355 building situate thereon, at the expiration of three days

from the date of service hereof upon you, your rent being in arrears.

"Dated Omaha, March 20, 1902.

"F. S. PUSEY, Trustee.

"By N. P. DODGE, JR., His Agent.'

A previous written notice to vacate was served on the defendant on February 1st. Except the check above mentioned, no payment as rent or on account of use and occupation was paid or tendered, and it does not appear what authority Dodge had from his principal in the transaction, except that it seems to be assented to by both parties that he was authorized to collect rents accruing for the plaintiff from this and other property. No arrangements having been made, the plaintiff on or about the 1st of April began this action in a justice's court, where he procured a judgment of restitution, which was reversed on appeal by the district court.

The sole contention upon the merits, by the defendant in error in this court, is that payment and receipt of the thirty dollar check above mentioned had the effect, by operation of law, to renew the former lease, if not for its full term of five years, then, at least, for one year and from year to year.

We cannot think so for two reasons: First, because leases for a term of more than one year cannot be made except in writing, or by an agent authorized by writing, and it is not shown that Dodge was authorized to make leases, even by parol; second, the payment and acceptance of money as rent, after the expiration of a fixed term, does not, of itself, renew the term, but is merely evidence of an intent to renew, from which, in the absence of evidence to a contrary effect, a contract to renew may be inferred: Montgomery v. Willis, 45 Neb. 434, 63 N. W. 794; 18 Am. & Eng. Eney. of Law, 2d ed., 193; Wilcox v. Montour Iron & Steel Co., 147 Pa. 540, 23 Atl. 840; Atlantic Nat. Bank v. Demmon, 139 Mass. 420, 1 N. E. 833; Johnson v. Foreman, 40 Ill. App. 456.

Now, it is clear as daylight, from this record, that neither 356 the representatives of the defendant nor Dodge, whatever were his powers as agent, supposed, at any time during the pendency of their negotiations for the execution of a new lease, that one had already been effected by the transaction of January 13, 1902, and if they did not so suppose, it is impossible to infer that they had that intent at that date

It is quite evident, to our

and had forgotten it so soon. minds, that the idea never entered the head of either party until after the beginning of this action.

Defendant further contends that the judgment of the district court should be affirmed, because the first clause of section 1021 of the code, as it was published when this action was begun, was unconstitutional and void, and that a landlord was therefore remitted to the common-law demand and notice, for the purpose of forfeiting a term for nonpayment of rent, and that no such demand or notice is proved in this But we do not find it necessary to pass upon this question, because we think it is clear that no term was in existence when this proceeding was begun, and therefore no steps to effect or declare a forfeiture were requisite. At the date mentioned, the defendant was simply holding over after the expiration of its term, and for such cases section 1020 of the code provides the remedy which was availed of in this case.

case.

It is recommended that the judgment of the district court be reversed and a new trial granted.

Hastings and Oldham, CC., concur.

By the COURT. For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, and a new trial granted.

The Mere Fact of a Tenant holding over after the expiration of his term is, not sufficient, without proof of some other affirmative act on his part, to show an election to renew the lease for an additional term under a stipulation in the lease giving the privilege of such renewal: Andrews v. Marshall Creamery Co., 118 Iowa, 595, 96 Am. St. Rep. 412.

A Tenant for one year or more does not, by implication, become a tenant for another year, where, before the expiration of his term, he procures the landlord's receipt for one month's rent, commencing at the expiration of the term. The new tenancy is one by agreement, for one month only: Blumenberg v. Myres, 32 Cal. 93, 91 Am. Dec. 560, and note.