#### Robert V. McAllister, Appellee, v. Elmer Robinson et al., Appellants.

(Not to be reported in full.)

Appeal from the Circuit Court of Coles county; the Hon. John H. Mabshat.t., Judge, presiding. Heard in this court at the April term, 1917.

Affirmed.

Opinion filed October 11, 1917.

Rehearing denied December 1, 1917.

Statement of the Case.

Bill by Robert V. McAllister, complainant, against Elmer Robinson and others, defendants, for partition of certain premises owned as tenants in common by complainant and one of the defendants whose husband, the other defendant, occupied the premises as a tenant. From a decree finding that the lease expired March 1, 1917, and ordering delivery of possession at that time, defendants appeal.

The tenant’s occupation of the premises began under an oral lease for one year, terminating March 1, 1913, for a rental of $400, for one-half of which he gave his note to complainant for one year, at the maturity of which and termination of the year’s tenancy he paid the note and gave a note for a like amount for another year, repeating the transaction' until March 1, 1916, *38when complainant refused to release at the same rent. By arbitration the rent for the ensuing year was fixed at the same amount and a new note for $200 was given to complainant for his half of the rent for that year. Bill for partition was filed averring termination of the tenancy March 1, 1917. Defendants’ answer stated that the tenancy was from year to year and that no written notice had been served.

Abstract of the Decision.

1. Landlobd and tenant, § 88 * —when tenancy from year to year is created. A tenancy from year to year is created where the tenant is permitted to hold possession of land after termination of his lease without any new agreement and without failing or refusing to pay the rent, and he does not claim adversely to his landlord.

2. Landlobd and tenant, § 87*—when tenancy from year to year is not created. Where a tenant under an oral lease for a year at an agreed rental gave his note therefor payable at the end of the year, when he again entered into an oral lease for another year at the same rental, for which he gave his note payable as before, and renewed the transaction for several years, until at the end of the last year the landlord refused to release at the same rental and, on arbitration, the rental was fixed for the ensuing year by the arbitrators and the tenant gave his note therefor payable at the end of that year, held that the last lease was a special contract for that year, at the rental agreed upon, terminating at the end of the year, and was not a tenancy from year to year, and the tenant was bound to deliver up possession at that time without notice to quit.

3. Pabtition, § 54*—when evidence in suit for is at variance with answers. Where a brother and sister were tenants in common of certain real estate in possession of the sister’s husband as a *39tenant under a lease from her brother, to whom one-half of the agreed rental was paid, held, in a suit for partition brought by her brother against her and the husband in which their respective answers alleged that the husband was a tenant from year to year of the whole premises, that her testimony that her husband was a tenant from year to year of her undivided half in the premises could not be considered as an admission binding upon plaintiff, as no such issue was raised by the answers.

*38Albert C. and Ben F. Anderson, for appellants.

Charles C. Lee, for appellee.

*

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

Mr. Justice Eldredge

delivered the opinion of the court.