#### M. A. Rowe and Ella Rowe, Appellees, v. Paul Kuhn, Appellant.

(Not to he reported in full.)

Appeal from the Circuit Court of Clark county; the Hon. E. R. E. Kihbbough, Judge, presiding. Heard in this court at the April term, 1915.

Affirmed.

Opinion filed October 13, 1915.

Statement of the Case.

Action by M. A. Rowe and Ella Rowe, plaintiffs, against Paul Kuhn, defendant, to recover rent due on *101an oil lease. From a judgment for plaintiff, defendant appeals.

Abstract of the Decision.

1. Appeal and error, § 367 * —When defense not considered on appeal. A defense that is not raised in the trial court cannot be raised on appeal for the first time.

2. Frauds, Statute of, § 122*—how defense of not raised. The defense of the Statute of Frauds is not raised by a motion to direct a verdict.

3. Landlord and tenant, § 310*—when lessor need not prove ownership. Where a lessee, defendant in an action for rent, has accepted the lease and paid rent upon it, the failure of the lessors to prove ownership is immaterial.

4. Landlord and tenant, § 325a*—when instruction in action for rent properly refused. In an action to recover rent under an oil lease, instructions requested by defendant that if the jury believed from the evidence that the payments made by the defendant or his agent were optional then they should find for defendant, held properly refused where, while defendant held the lease, he prevented any contract being made with other parties to prospect for oil, and he had the right under the lease to reconvey and release any rights under the lease and thus prevent the accumulation of rents.

Samuel B. Scholeield and John J. Arney, for appellant.

Harry J. Buxbaum and Everett Connelly, for appellees.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Thompson

delivered the opinion of the court.