delivered the opinion of the court:
It is first claimed by plaintiffs in error that at the time of the execution of the lease by -Haumesser to McQuaid, Haumesser was the owner of only a part of the premises, and that by executing a lease for all of the premises, and because the premises were leased by McQuaid for the illegal purpose of selling liquor without a license, the whole transaction was thus tainted with such fraud and illegality as to reduce Mc-Quaid from the status of an innocent and lawful lessee or tenant to that of a mere tortious occupant, and he was therefore not entitled to retain the premises as against the rightful owner. We do not think this contention can be maintained. *361At the time the lease was executed Haumesser was the owner of only a portion of the premises, but his act of leasing was approved by Schmitt, who was one of the other owners, and there is nothing in the record to show that Haumesser did not act as the agent of the tenants in common or that the other tenants in common made any objection to the leasing. McQuaid entered and remained in possession for several months after the execution of the lease, paying the rent. In the absence of evidence to the contrary we will presume that the lease was made with the knowledge and consent of all of the tenants in common. There is nothing to show that the premises were leased for an illegal purpose. While it is true that McQuaid used them for an illegal purpose, and that fact might authorize the lessor to avoid the lease, yet the lessee would be entitled to his day in court before he could be deprived of the benefits of his lease.
It is next insisted that as the lease was made after the filing of the bill for partition, McQuaid took the interest in' the premises which he derived through the lease pending the partition suit, and the decree of partition and order of sale were therefore binding upon him. While it is true the lease was made subsequent to the filing of the bill for partition and the interest of McQuaid in the premises was taken subject to the rights of the parties to that suit, the decree of partition did not take into consideration his interest. That interest might have been adjudicated and the decree ordered him to surrender possession to the purchaser or his grantee, but in the absence of any such order he could not be forcibly evicted. Even though he was wrongfully in possession the defendants below had no right to oust him unless they could do so without force.
It is next contended that during the time McQuaid was in jail, and during the trial, Haumesser had the key to the building, and was in possession at the time of the entry by plaintiffs in error, and hence McQuaid cannot maintain this action; also, that even if McQuaid was in possession, the *362entry of plaintiffs in error was peaceable and without force, and as they were entitled to pbssession defendant in - error could not maintain this action. The evidence shows that at the time McQuaid was taken to jail he left his effects in the building with no one in charge. The building was not in good repair, and one of the windows near the door was broken. That opening was covered with a piece of tin, pasteboard or some other temporary covering. Haumesser went to the jail and got the key from McQuaid and in company with another man entered the building for the purpose of seeing that the contents were intact. He claims that they nailed a board in a substantial manner over the opening in the window, and piled the beer cases against it so as to prevent anyone from entering in that way. By the surrender of the key to Haumesser, McQuaid did not part with his possession of the building, but the delivery was made simply for the purpose of taking temporary care of the contents, pending the expiration of McQuaid’s sentence. The evidence shows that at the time plaintiffs in error entered the building it was necessary for them to remove the obstructions placed over the opening in the window. Just how much force was used does not clearly appear, but it was shown that the entry was at least with some force, and McQuaid still having the possession, the plaintiffs in error were guilty of the trespass for which the suit was brought.
After the evidence had been submitted, and during the argument of counsel to the jury, a controversy arose between one of the attorneys for plaintiffs in error and a juror, in ■ which the juror expressed an opinion as to the law applicable to the facts of thé case. Objection was made to this conduct of the juror. The objection was sustained by the court and the juror informed that it was not proper for him to make such remark at that time. It is now insisted by plaintiffs in error that because of such misconduct of the juror the jury should have been discharged,- or instructed to bring in a verdict for the plaintiffs in error. In the controversy between *363counsel and the juror the attorney himself was not wholly without fault. The remark of the juror was improper, but the judge promptly sustained the objection thereto, and as far as he could removed any prejudicial effect which would result therefrom. We do not think the irregularity was of so grave a character as to justify the setting aside of the verdict and ordering another jury to try the issues.
Complaint is made of certain remarks by counsel for defendant in error in his argument to the jury. They were "objected to at the time, and the court sustained the objection and instructed the jury to disregard them. No reversible error is shown in this respect.
The plaintiffs in error offered evidence tending to show that the building was in a dilapidated condition, which was objected to by defendant in error and the objection sustained, which ruling is assigned for error. We are unable to see how the evidence in any way tended to enlighten the issues being tried. The question was whether or not plaintiffs in error had been guilty of trespass by forcibly entering while the building was in the possession of the defendant in error. The court therefore committed no error in excluding the evidence.
Complaint is next made of the refusal of the third and ninth instructions offered on behalf of the plaintiffs in error. We have examined the instructions given, and are of the opinion that the jury were fully instructed as to the law applicable to the facts, and that the refusal of the two was not error.
From a consideration of the whole case we -are of the opinion that the evidence sufficiently showed that the defendant in error was rightfully in possession of the premises at the time of the entry by thé plaintiffs in error, and that the entry by them was with such force as to make them guilty, in law, of trespass.
The judgment of the circuit court is therefore affirmed.