App.]

People's Bldg., L. & S. Co. v. McIntire.

notified Berger, in writing, that he desired possession of the premises; that he, Berger, would not be permitted to have the premises from March 1, 1921, to March 1, 1922; and ordered Berger to vacate.

The agreement, under which Berger claims his right to the premises for the year beginning March 1, 1921, and ending March 1, 1922, was not acknowledged by the parties, nor signed by two witnesses, and was not recorded. It is contended by Campbell that the lease comes within the provision of Section 8510, General Code, requiring it to be acknowledged and witnessed, while it is claimed by Berger that the lease comes within the class of temporary leases, is under Section 8517, General Code, and that these formalities are not necessary. This places the defendant in the anomalous position of claiming rights under a lease, exercised more than three years subsequent to its execution, and, yet, insisting on being within the class of temporary leases. Berger could have no rights under the lease unless he is protected by the option, which he seeks to exercise four years after the execution of the agreement. The option provided in the lease for four consecutive years must be held to be "an interest in real property," and would bring the lease within Section 8510 of the statutes, requiring acknowledgment and attestation of the same. His rights must, therefore, be determined under Section 8510 and not under Section 8517. What then are Berger's rights under the lease? An unrecorded, valid lease, properly executed, is binding on the parties, and on third parties with notice. Wright v. Franklin Bank, 59 Ohio St., 80.

The failure to record the lease could have no

People's Bldg., L. & S. Co. v. McIntire.

[14 Ohio effect. Placing on record a lease which is void because not executed in conformity with the statute, does not have the effect of constructive notice of its terms to third parties. Fulton v. Doty, 63 Ohio St., 603, and Langmede v. Weaver, 65 Ohio St., 17.

In the case of Richardson v. Bates, 8 Ohio St., 257, the court held in the first paragraph of the syllabus:

"That the answer, setting up that the indenture was not attested nor acknowledged by the lessor, and therefore did not convey the term, and that the lessees were not indebted for any rent under the indenture, stated facts sufficient to constitute an equitable, and therefore a perfect, defense under the code.'

A lease exceeding three years, not acknowledged or attested, is void as a lease. Bridgmans v. Wells, 13 Ohio, 43, and B. & O. Rd. Co. v. West, 57 Ohio St., 161.

While it has been held that such instrument might operate as a contract for a lease, and would empower a court of equity to direct that a valid lease be executed, that proposition is not before us. The defendant Berger stands on the lease in question as it now exists. The rule is that where a lessee enters into possession of the demised premises under a lease, for a term of years, at an annual rent, if the lease for any cause be void, he becomes a tenant for a year at the rent reserved in the lease, and subject to all of its provisions except its duration. B. & O. Rd. Co. v. West, 57 Ohio St., 161.

In the case of Toussaint Shooting Club v. Schwartz, 84 Ohio St., 440, the court laid down the rule in clear and concise terms, when it held that a

App.]

People's Bldg., L. & S. Co. v. McIntire.

lease for a term of five years, with privilege of renewal, not executed or acknowledged as required by law, was not a paper entitled to record, and, therefore, did not convey an estate for the term, but only from year to year at the will of the parties.

The cases of Richardson v. Bates and Toussaint Shooting Club v. Schwartz, supra, were commented on and cited with approval by the supreme court in the case of Lithograph Bldg. Co. v. Watt, 96 Ohio St., 74. Under the rule thus laid down, Berger held the premises as tenant from year to year at the will of the parties. He was notified by the lessor, in February, 1919, that he had sold the premises, and to whom he had sold. Notwithstanding the sale, Berger was permitted to continue as such tenant from year to year for the succeeding two years. Thereupon, in December, 1920, he was notified by the purchaser that his tenancy would cease on March 1, 1921.

Under the facts and the law, as above stated, Berger's rights ceased March 1, 1921, and he is not entitled to hold over.

The conclusion is that he has no interest in the premises to protect, and is therefore not entitled to discharge the judgment of the plaintiff building, loan and savings company, and be subrogated.

The relief prayed for by Berger in his answer and cross-petition will be denied; the answer and cross-petition will be dismissed; and the cause will be remanded to the court of common pleas for further proceedings. Decree accordingly.

CUSHING and BUCHWALTER, JJ., concur.

Industrial Commission v. Wagar.

[14 Ohio

INDUSTRIAL COMMISSION OF OHIO V. Wagar et al.,

BY ETC.

Workmen's compensation — Benefits in case of death-Section 1465-82, General Code Joint awards unauthorized, when.

There cannot be a joint award of compensation from the state insurance fund, under Section 1465-82, General Code, to a wholly dependent class and a partly dependent class.

(Decided April 20, 1921.)

ERROR: Court of Appeals for Summit county.

Mr. John G. Price, attorney general, and Mr. C. G. Roetzel, prosecuting attorney, for plaintiff in

error.

Messrs. Benner, Harter & Walker, for defendants in error.

WASHBURN, P. J. In the court of common pleas this case was submitted on an agreed statement of facts, which discloses that Raymond T. Wagar was killed while in the course of his employment, and under circumstances which entitle his dependents to benefits under the Workmen's Compensation Law of Ohio.

He had been married twice; the defendants in error, who are under ten years of age, are his children by his first wife, with whom said children now and for several years have lived and by whom they have been supported.

At the time of his death said Wagar had a second wife and one child by her, who were living with and being supported by him.

App.]

Industrial Commission v. Wagar

After his death, the second wife and child applied to the Industrial Commission for an award, as did also defendants in error, his children by the first marriage:

The commission exercised jurisdiction in the matter and found that the dependents of Wagar, under the Workmen's Compensation Law, were the second wife and child, and made the full award authorized by the law to them, finding said wife and child wholly dependent upon him and the children by the first marriage not dependents under the circumstances and within the meaning of the law.

The children by the first marriage thereupon filed their appeal in the common pleas court of Summit county, where Wagar lived, was injured and died, making only the Industrial Commission a party defendant.

The Industrial Commission answered, setting forth that it considered the claims of all the parties, and upon due consideration found and determined that the second wife and child "were wholly dependent upon the deceased for their support, and awarded them compensation in the maximum amount authorized by the Workmen's Compensation Law," and that it had paid a part of said award in a lump sum and was paying the balance in weekly payments according to law. It asked that the petition below be dismissed.

The trial court did not dismiss the appeal, and upon trial, a jury being waived, awarded judgment against the Industrial Commission in favor of the children of the first wife, for $2,496 and costs, including in said costs $750 as attorney fees.