PULLUM v. RHEA. (Court of Appeals of Kentucky. March 16, 1923.) 1. Frauds, statute of 125() - Equitable rights cannot be relied on to enforce oral contract. Though equitable rights arising from an attempted execution of an oral contract for a three-year lease may be protected, they cannot be relied on for the purpose of enforcing the contract as orally entered into, and therefore cannot entitle the tenant to retain possession of the premises. 2 Frauds, statute of 129(4)-Possession under oral lease cannot be relied on to defeat recovery by owner. Possession of premises under the terms of an oral lease for three years cannot be relied on to defeat the recovery of the premises or the reasonable rental therefor by the owner. 3. Statutes 167(2)—Provision of Revised Statutes omitted from General Statutes of 1873 held repealed. In view of Acts 1873, c. 1011, adopting the General Statutes, providing that the chapters thereof shall become the law of the land, and section 2 of the General Statutes, repealing all statutes of a general nature in force when those statutes took effect, and which are repugnant thereto, with certain exceptions the adoption of the General Statutes repealed the provision of Rev. St. 1860, c. 56, art. 1, § 4, requiring six months' notice to terminate a tenancy from year to year if the lands are outside of the city or town, which provision was omitted from the General Statutes. 4. Landlord and tenant 116(2), 120 (2)Notice to terminate yearly tenancy is not required. Under Ky. St. 1922, § 2295, which contains no definition of a tenancy from year to year, but provides that a tenant under a term which was to expire on a certain day should acquire no rights by holding over if proceedings to recover possession were instituted within 90 days after the end of the term, and section 2326, providing that a tenancy at will or by sufferance may be terminated by the landlord giving one month's notice in writing, a tenant in possession under an oral lease for three years is guilty of forcible detainer where notice to quit was served on him 45 days before the expiration of one of the years, and proceedings were instituted against him within 90 days thereafter, regardless of whether his tenancy was from year to year or by suf ferance. 5. Landlord and tenant 216-Provision allowing double rent applies only to cases strictly within its terms. The provision of Ky. St. 1922, § 2293, charging a tenant who refuses to give possession at the expiration of the term with double rent, is highly penal, and, like all such statutes, will not be enforced unless the facts of the particular case come strictly within the purpose of the Legislature in enacting it. 6. Landlord and tenant 216-Tenant holding possession in good-faith belief of right is not liable for double rent. Where the trial court found that a tenant acted in good faith under the bona fide belief that he had the right to remain in possession, and that he had at least reasonable grounds for that belief, it was proper to refuse to allow the landlord double rent as authorized by Ky. St. § 2293, which applies only where the tenant remains in possession knowingly and wrongfully. Appeal from Circuit Court, Union County. Separate actions for forcible entry and detainer and for double rent by Mrs. Inez B. Rhea against John Pullum, consolidated for trial. From a judgment awarding possession of the premises to plaintiff, and giv ing her the reasonable rental value as fixed by the jury, but denying double rent, both parties appeal. Affirmed on both appeals. G. L. Drury and Truman Drury, both of Morganfield, for plaintiff. Allen, Harris & Allen, of Morganfield, for defendant. In Mrs. Inez B. Rhea, is the only child and heir the possession of the farm to her on or be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) heard before the court without a jury, and done in the execution of a verbal contract plaintiff was adjudged guilty of the forcible which the statute requires to be in writing detainer, but in the meantime he had occu- are not void, and that the defendant may pied the land for the year 1919, and had va- rely on such verbal contract in justification cated it by January 1, 1920. After the lat- of his entry upon the premises so as to reter date, and before the trial in the circuit lieve him of the charge of trespassing therecourt, plaintiff filed an ordinary action on, and, further, that equitable rights may against him in which she alleged that a rea- arise from such attempted execution of the sonable rental for the place during the year contract, but which are not necessary for us 1919 was $1,500, and she prayed judgment to state in this opinion. It will be observed against defendant for double that amount, in those opinions that none of the equitable insisting that she was entitled thereto un- rights growing out of such circumstances der the provisions of section 2293 of our pres- may be relied on if the purpose is to enforce ent Kentucky Statutes. The answer to that the contract as verbally entered into. When petition denied the unlawful or wrongful de- the latter is attempted it is a plain effort tainer, and pleaded the unreversed judgment to enforce the contract, and to charge the in the forcible detainer proceedings in bar other party thereto with its obligations as thereto. By an amended answer defendant entered into, which is exactly what defendpleaded matter in estoppel which consist-ant is trying to do in this case. Hence, in ed in the sowing of a crop of wheat on the the Cassiday Case, supra, it was said: land in the fall of 1918, and before he received notice to surrender possession. By another amended answer he pleaded that he occupied the farm during the year 1919 under the honest and good-faith belief that he was entitled thereto under his tenancy contract, and that he had submitted all the facts relating thereto to a reputable practicing attorney, who informed him that he was entitled to occupy the place for that year and he pleaded such facts in defense of plaintiff's right to collect double rent under the provisions of the statute. "It is elementary in the law of contracts that the right to enforcements must be mutual and belong to both parties. Mere possession under a parol agreement as to land, and which is within the statute, will not enable the party in possession to defeat a recovery by the owner. The holder can only insist upon any equities growing out of the transaction. The contract will be disregarded at the instance of either party upon equitable principles." The "equitable principles" and "any equities growing out of the transaction" are the rights which the cases relied on by counsel acknowledge and enforce; but the inserted excerpt expressly holds that neither party may rely on the terms of the verbal contract, nor can the party in possession "defeat a recovery by the owner" upon any such reliance. They also hold that Appropriate pleadings made the issues, and the causes were consolidated, the court trying the forcible detainer proceedings, as hereinbefore stated, but the issue as to the reasonable rent for the year 1919 was submitted to a jury, and it returned a verdict To the same effect are the cases of under the instructions of the court, in favor of plaintiff for the sum of $1,300, whereupon, J. W. Reccius & Bro. v. Columbia Finance plaintiff moved the court for a judgment in & Trust Co., 120 Ky. 478, 86 S. W. 1113, 27 her favor for the sum of $2,600, but that mo- Ky. Law Rep. 1113, Wessells v. Rodifer, 97 tion was overruled, and a judgment was S. W. 341, 30 Ky. Law Rep. 51, Gault v. rendered for the amount of the verdict. De- Carpenter, 187 Ky. 25, 218 S. W. 254, and fendant's motion for a new trial was over- Cracraft v. McDaniel, 196 Ky. 128, 244 S. W. ruled, and he prosecutes this appeal, and 300, as well as a number of others from this plaintiff has moved for and obtained a cross-court, some of which are cited and referred appeal, complaining of the action of the to in the cases supra. court in declining to render judgment in her favor for double the amount of the verdict. [1, 2] It is first insisted by learned counsel for defendant that, although the lease contract under which defendant claims the right of occupancy was one which the statute of frauds required to be in writing, and signed by the party to be charged, yet the statute only provides that "no action shall be brought to charge any person" on any of the contracts therein required to be in writing, and that there is no effort in this case to charge any one on the contract involved, and they therefore cite the cases from this court of Weber v. Weber, 76 S. W. 507, 25 Ky. Law Rep. 908, Dean v. Cassiday, 88 Ky. 572, 11 S. W. 601, and Beckett Oil Co. v. Backer, 165 Ky. 818, 178 S. W. 1084, holding that acts an estoppel will not arise out of a part performance of the contract; and in the Gault Case the prior one of Jones v. Commonwealth, 104 S. W. 782, 31 Ky. Law Rep. 1148, was expressly overruled in so far as it held that the sowing of a crop of wheat in part performance of the contract would estop the landlord from ousting the tenant during the succeeding year, which was but adhering to our rule that "the doctrine that part performance of an oral contract takes it out of the statute of frauds does not prevail in Rhinehart v. Kelley, 145 Ky. Kentucky." 470, 140 S. W. 653. It is next insisted, and which is the chief point relied on for a reversal of the judg ment, that defendant was a tenant of the premises "from year to year," and that he was entitled to six months' notice to surrender it. That insistence is bottomed on chapter 56, § 4, of article 1 of the second volume of the Revised Statutes of Kentucky by Stanton (1860), which subsection says: "Either party may terminate a tenancy from year to year, by giving notice, in writing, of his intention to terminate the same, of not less than three months before the end of the year if for lands in a city or town, and six months if elsewhere." land to take effect on the first day of December 1873, except such parts thereof as to which a different provision is expressly made therein," and (section 2) "that all statutes of a general nature in force when the General Statutes take effect, and which are repugnant thereto, are hereby repealed, except as follows," etc. Then follows the exclusion of named classes of local statutes, and those of the commonwealth of Virginia relating to the appropriations of land in this commonwealth, and some others not pertinent to the question now involved. On October 13, 1874, the opinion in the case of Broaddus v. Broaddus, 10 Bush, 299, was handed down by this court, and there was involved in it the question as to the effect of the adoption of the General Statutes upon all statutes of general application contained in the Revised Statutes, and which had been omitted from the General Statutes as adopted by the act of 1873. The special point involved in that case was whether certain provisions of the Revised Statutes with reference to appeals to this court in will contest cases were repealed by the adoption of the General Statutes, which latter did not contain the particular provision of the Revised Statutes. holding that the adoption of the General · Statutes with such provisions omitted therefrom had the effect of repealing them, the court in that case said: In If that statute was still in force by its express terms it applies only to a tenancy "from year to year," and the first question to arise would be whether the occupancy of defendant in this case was one under such a tenancy. Were it necessary for the determination of this case to judicially define the precise tenancy covered by those words, we could cite authorities to the effect that it applies only to an occupancy with no definite termination, and in which an annual, monthly, or a periodical rent was reserved as long as the occupancy continued, but as to which no definite period was fixed in the contract, or at the time of the original entry upon the premises. Its common-law definition did not include leases that by their terms had a fixed termination, as did the lease in this case, the termination whereof was at the end of the year 1919. On the contrary, the writers on the subject, as well as the adjudged cases, "When a section in the Revised Statutes has seem to hold that an occupancy under a con- been omitted in the General Statutes, or any tract containing a fixed termination of the change made, however slight, in a general lease, but which is not enforceable because law, the whole law as found in the Revised against the statute of frauds, is one at suf- Statutes on that subject must be considered ferance, or at will, which may be terminated and treated as repugnant to the provisions of at any time at the pleasure of either party the General Statutes, as in construing one secby their complying with the requirements of tion of a general law the object and intention the local law with reference thereto, if any of the whole law must be considered. It never was contemplated by the revisers, or by the on the subject, since by the terms of the statute it is not obligatory on either, and neither both the old and new statutes should be conLegislature in adopting these statutes, that of them may be subjected to any action seek-sidered together in determining what the law is. ing to charge them thereon; and such was "The General Statutes must be regarded as the holding of this court in the Wessells containing a complete system of laws, and in so Case, supra, where the occupancy was under a contract not in writing as required by the statute of frauds. We say that, if it was essential to the determination of this case to demonstrate the correctness of the above statement by reference to the adjudged law, we feel that it would be no difficult task: but, since we have determined that it is not necessary in this case, we will not attempt to do so, and do not, therefore, attempt an exact definition of that class of tenancies. far as they treat of any general law, whether under the title of 'Wills,' 'Executors and Administrators,' 'Husband and Wife,' 'Guardian and Ward,' etc., it must be considered and treated as all the statute law on the subject indicated by the title; and if the system is defective in any of its parts, the remedy is to be found in legislative amendments." The doctrine therein announced has been followed in a number of succeeding cases, as will be seen in volume 1 of Caldwell's Notes [3] The relied on section from the Revised to Kentucky Reports (page 158), some of which Statutes, supra, was omitted from the first are: Bunnell v. Bunnell, 111 Ky. 566, 64 S. W. and all succeeding editions of the General 420, 65 S. W. 607, 23 Ky. Law Rep. 800, 1101: Statutes compiled by Bullock, Nesbitt, and Joyes v. Jefferson County Fiscal Court, 106 Craddock in 1873, and in the same year the Ky. 615, 51 S. W. 435, 21 Ky. Law Rep. 199; Legislature by the enactment of chapter 1011 Herndon v. Farmer, 114 Ky. 200, 70 $. W. 632, (page 53, vol. 1, Acts 1873), entitled "An act 24 Ky. Law Rep. 1015; and Pettit v. Yewell, to adopt the General Statutes," provided | 113 Ky. 777, 68 S. W. 1075, 24 Ky. Law Rep. that the chapters thereof from 1 to the last 565. The case of O'Mahoney v. Bullock, 97 one, inclusive, "shall become the law of the Ky. 774, 31 S. W. 878, recognizes the doc Ky.) PULLUM v. RHEA trine, and announces nothing contrary thereto, but holds that it does not apply as between the General Statutes and the present Kentucky Statutes, since at that time there was no act adopting the latter statutes, although there was subsequently enacted an act | adopting the 1903 edition of the latter statutes, and which is section 2290b of the 1909 edition of Carroll's Kentucky Statutes; but it expressly provided: "That this act shall not be construed to render valid any invalid chapter or section or part thereof embraced in said statutes, or to amend, modify, or repeal any law or part thereof now in force or effect, and not included in said [Ky.] Statutes." On the to but 30 days' notice to remove. was given in this case, and the forcible de- detainer. It is not so in this case, and it is the duty of the [5] On the cross-appeal it is strenuously insisted, and not without reason and plausi[4] So that, whatever may be the effect bility, that plaintiff was entitled to collect of the adopting act of the Kentucky Stat- double rent under the statute, supra, the proutes on prior provisions contained in the visions of which, as will be observed, are General Statutes, under the doctrine of the highly penal, but with which the courts have Broaddus and subsequent cases the latter no concern as long as the provisions do not statutes had the effect to repeal general pro-invade any constitutional inhibition. visions in the Revised Statutes which were omitted from the General Statutes. It therefore necessarily follows that section 4 of article 1 of chapter 56 of the Revised Statutes, supra, upon which defendant relies, was repealed by the adoption of the General Statutes. In the first edition of that publication there was for the first time enacted article 4, c. 66, p. 608, therein, and it was carried forward in subsequent editions of the General Statutes, and is the same as the present section 2295 of the 1922 Carroll's Edition of So that, although the Kentucky Statutes. there may be now in existence no statutory definition of what is a tenancy "from year to year," the General Statutes made provisions by which all classes of tenancies, including that class, might be terminated, and the question, therefore, is one more as to how a tenancy, whatever may be its nature, may be terminated than one of a proper classification of it. In the same first edition of the General Statutes it was provided in the first section of article 6 of chapter 66, Edition of 1873, that "A tenancy at will or by sufferance may be terminated by the landlord giving one month's notice, in writing, to the tenant requiring him to remove," which section was carried forward in subsequent editions of that publication, and is the same as section 2326 of the present Kentucky Statutes, and it is the only statute now in existence requiring notice in order to terminate any character of tenancy, and that condition of the law has existed continuously since the adoption of the first edition of the General Statutes. The earlier cases from this court cited and relied on by defendant's counsel, the principal one of which is More héad v. Watkyns, 5 B. Mon. 228, are not, therefore, applicable. [6] The case of Jones v. Taylor, 136 Ky. 39, 123 S. W. 326, Ann. Cas. 1912A, 276, is the second appeal of the case of Jones v. Commonwealth, supra, and is one the facts of which are very similar to those found in The double rent provision of the this case. statute was there sought to be enforced. It was therein pointed out that our statute on the subject was copied after an English statute of George II, which, however, gave double rent only when the tenant "willfully held over." The English courts, as shown in that opinion, declined to apply the provisions of the statute where the tenant acted bona fide, and in good faith believed that he to was entitled to occupy, and where it did not appear that he intentionally desired wrong the landlord or to invade his rights. Following those English cases, it was said by this court in the case of Aull v. Bowling Green Opera House Co., 130 Ky. 789, 114 S. W. 284, and approved in the Jones-Taylor Case, supra, that: "As we construe this section, it means that if a tenant, knowingly and wrongfully, remains in the possession of property, not believing nor having any reason to believe that he has a right to remain in possession thereof, and refuses to deliver to his landlord posThe ease before session of the property, then he may be adAppellant had judged to pay doubt rent. us is not of that character. what he had reason to believe was a binding contract with the landlord, which permitted him If we should construe the occupancy of to remain in possession of the property, as defendant in this case as being one at suf-tenant, for a term of three years, and such a ferance, or at will, then he was not entitled contract as courts might differ as to the effect of, and his remaining in possession of the prop-in declining to adjudge double rent against erty, under such circumstances, ought not to defendant. place upon him the liability of paying double Wherefore the judgment is affirmed both rent, and the court did not err in failing to on the original and cross-appeals. charge him with it." After approving that statement, the opinion in the Jones-Taylor Case said that ASHER v. GIBSON et al. (Court of Appeals of Kentucky. 1923.) March 16, "The statute was enacted for the purpose of preventing a tenant, to the prejudice and loss of the landlord, from wrongfully withholding. Mines and minerals 50-Petition held to the property without having in good faith cause. to believe he could rightfully do so." allege ownership of coal by plaintiffs. A petition alleging that defendants had begun to remove coal from a mine which was part of the coal reserved, and not sold or conveyed by plaintiffs, and which the plaintiffs owned under legal title, and of which they had at all times had actual possession, specifically alleges ownership and possession of the minerals. 2. Judgment 251 (3)-Withdrawal of defense that plaintiffs did not own entire interest warrants judgment for entire interest. The opinion then proceeds to say that his belief must be an honest one, and based on reasonable facts and circumstances, and it will not be sufficient to relieve him of the penalty of paying double rent if he merely states only "that he believed he had a right to hold the premises"; that in order for him to be relieved therefrom "he must furnish reasons sufficient to induce a jury or court hearing the case to believe that he in good alleging as a pro tanto defense that the two faith, based upon reasonable. grounds, be-cestor under whom they claimed, without reitplaintiffs were not the only heirs of the anlieved he had a right to remain in posses-erating that allegation in the amended answer, sion"; and further said: "And it is admissible for him to show that he laid his case before a competent attorney, and was advised that he had a contract right to remain in possession of the premises." Where defendant had withdrawn an answer the court, on finding for plaintiffs, properly adjudged them to be the owners of the entire interest in the coal involved, since there was no issue limiting their interest. 3. Mines and minerals 55(1)-May be separated from surface by reservation. rupted. The adverse holding must be continuous and uninterrupted for the statutory period, and a later adverse possession cannot be tacked onto a prior one, where there was an intervening period in which the possession was interrupted. It was held in that case that, in order to the surface and the corresponding creation of A separation of the minerals in land from make the latter testimony competent, the ten-two distinct estates in the two classes of ant must place before the consulted attorney property may be effected by a reservation in all the facts in his possession relating to the a deed conveying the surface as completely as case. It will thus be seen that the defense by a separate and distinct deed to the minerals. against double rent of the advice of counsel 4. Adverse possession 44-Must be uninteris by that opinion made somewhat analogous to the same defense in civil actions for malicious prosecution; but it is not stated in the Jones Case that such advice, when properly obtained, would itself alone constitute a defense as is true in actions for malicious prosecutions, and we adjudge that question neither the one way nor the other in this case. The facts were before the learned judge who presided at the trial, and he determined therefrom that defendant herein acted in good faith under the bona fide belief that he had the right to remain in possession, and that he had at least reasonable grounds for that belief, and for that reason declined to adjudge double rent. 5. Adverse possession 24-Occasional trespass does not show continuous occupancy. Occasional trespasses by cutting timber or otherwise is not such a continuous occupancy or assertion of ownership as will eventually ripen a title in the trespasser. 6. Mines and minerals 49-Possession of Learned counsel for plaintiff vigorously 7. Mines and minerals 49-Interruptions of possession held to prevent acquisition of title to minerals. Where the evidence showed conclusively that the possession of minerals by defendant |