Unless there is an express stipulation for a forfeiture, the breach of a covenant in a lease does not work a forfeiture of the term. This rule was approved and applied by this court in the case of Thomas v. Kirkbride, in the following words: ‘Forfeiture is very rarely decreed or enforced, unless specifically provided for by the contract. To call for such action, forfeiture must be clearly nominated in the contract,’ and is, as shown by numerous other Ohio decisions, the established rule in this state.
As shown by the amended petition in the instant case, no forfeiture was provided for by the contract of lease, and the justice’s court was, therefore, without authority to render judgment of ouster before expiration of term of lease which was necessarily based on forfeiture of the term of the lease.
The plaintiff is not barred by the judgment in the forcible entry and detainer action from maintaining an action, either at law or in equity, to determine the right of possession to the real estate leased to him, he, while in possession of the real estate, had the right to maintain this action to enjoin the enforcement of the judgment, the action being in the nature of an action to quiet his title to the possession of the premises.
Equity abhors a forfeiture and will relieve against it.
The plaintiff, in his amended petition in this case, alleges facts sufficient to constitute a cause of action for injunction and the quieting of his title, and the court, therefore, erred in sustaining the motion to dismiss and in dismissing plaintiff’s amended petition, as set forth in this assignment of error. In his fourth assignment of error plaintiff refers to ‘Other errors of law apparent on the record and excepted to by plaintiff-appellant,’ but does not specify or argue any such errors in his brief, so the court, under its statutory prerogative, will not consider this assignment.
For the errors hereinbefore mentioned, the judgment of the Common Pleas Court will be reversed, at costs of defendants-appellees, and the cause remanded to it with instructions to overrule the motion of defendants to dismiss, and for further proceedings according to law. Judgment reversed.
