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7. Where lessee holds premises after lease expires, or under assignee of lessor, whether action will lie for use and occupation.

If there be an indenture of lease for only one year, it is very clear that covenant would not lie upon the indenture for any rent accruing after the year expired. 1 Pick. 335. Yet it has been said, that if a tenant from year to year hold for four or five years, either he or his landlord, at the expiration of that time, may declare on the demise as having been made for such a number of years. Legge v. Strudwick, Salk. 414; Buller, J., in Birch v. Wright, 1 T. R. 380; The King v. Herstmonceaux, 7 Barn. & Cress. 551, 1 Man. & Ry. 426. A sounder view has been since taken. Digby v. Atkinson &c. 4 Camp. 278; Bishop v. Howard, 2 Barn. & Cress. 100, 9 Eng. Com. Law Rep. 41. Alderson, B. would give no opinion in contradiction of those dicta. But he considered that a party may in his pleadings set forth his whole case, and the court may determine the legal effect of it. This was done in Buckworth v. Simpson, 1 C. M. & R. 843. The declaration stated a demise which was to continue from year to year, unless there was notice to determine it. It alleged the absence of notice, and a continuance of the occupation by the lessee in his lifetime, and afterwards by the defendants as his assignees, and a promise by them that in consideration of the plaintiff permitting them to continue in possession, and omitting to give notice, they would perform the agreement in all things to be performed, on the behalf of the deceased. This promise, it was held, was implied by law. Parke, B. said, "The nature of the demise is this, that the party taking it is to hold on from year to year, so long as the parties shall please, with the power of notifying that dissent by giving a notice to quit. Suppose the land to descend to the heir at law, and he omits to signify his dissent to its continuance by giving notice to quit, the tenancy will continue. Again, if the tenant assigns, and the landlord do not give notice, the assignee must hold on the same terms. That contract the law will imply; otherwise the consequence would be, that no action could be brought on the original demise when there is an occupation from year to year, and the tenant assigns, for there is no contract whatever unless the original contract is transferred by operation of law. It is contended, however, that the executors of the original landlord, where he is dead, must bring an action against the personal representative of the original tenant. That would be very inconvenient; and therefore it is better to hold that a new relation of landlord and tenant arises

by implication from the situation of the parties, where there is a continuance of the occupation, and an omission by those who represent the original parties to give notice to quit."

In 1847, there was a case where an absolute lease in writing, not under seal, for a fixed term of years, having been granted, and the landlord having assigned his reversion, the question was whether the assignee could maintain an action of assumpsit for use and occupation. Standen v. Chrismas, 10 Adol. & El. N. S. 142, 59 Eng. Com. Law Rep. 142. There the lessor having granted for himself and his assigns, the permission of any person who might become assignee of the reversion during the lease was considered to be virtually included, so that the occupation became in point of law permissive on the part of the assignee as soon as his interest took place; and the action was maintained by virtue of the statute of 11 Geo. 2, c. 19, § 14.

Afterwards, the principle of Buckworth v. Simpson was acted on, where one of two lessors assigned his part of the reversion; and the lessee (though his contract being unsealed did not pass with the assignment of the reversion) continued the estate from year to year under the assignee of the reversion. Arden v. Sullivan, 14 Adol. & El. N. S. 832, 68 Eng. Com. Law Rep. 832.

In the United States the written agreement for the first year has sometimes been of so singular a nature that the court has thought there could not be any implication of law that it should extend to the second year. The court so considered where the lease contained several collateral matters to be done by each party which could be performed in the first year only. Diller v. Roberts, 13 S. & R. 63. Such a case is an exception to the general rule, that on the lessee's holding over after the year for which his lease was made, the law implies an agreement that he shall pay the like rent, and at the like time that he had agreed to pay the first year. 13 S. & R. 63;

Phillips v. Monges, 4 Whart. 229. In the absence of any new and express stipulation in such case, and where the relation of landlord and tenant still exists, the law implies those terms which are found in the contract that has expired. Young v. Buchanan, 10 Gill & J. 157.

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Where there is a demise for a year, and the tenant pays the rent for that year, and continues in possession for three years without a new agreement, it is considered in New York not only that his continued possession is a holding by implied permission of the original lessor, but that an action for use and occupation will lie against him. Osgood v. Dewey, 13 Johns. 240.

8. Where after lease expires, premises are held by an undertenant, or by one of the original lessees, whether all of those lessees continue liable.

If at the time a lease expires, the premises are in possession of an under-tenant, the landlord not receiving the possession, may still hold the original lessee liable, unless it appear that he has accepted the under-tenant as his tenant. Harding v. Crethorne, 1 Esp. N. P. Cas. 57; Ibbs v. Richardson &c. 9 Adol. & El. 849; 36 Eng. Com. Law Rep. 301. It has been argued that there is no distinction, in this respect, between the possession of an under-tenant and a co-tenant. Christy v. Tancred &c. 7 M. & W. 127. Parke, B. doubted whether there should not be such distinction. And Alderson, B. wished for time to consider whether in the case of a lease granted to two parties, one of whom is desirous of giving up possession, and notifies his desire to the other, who nevertheless holds over, the party who is out of possession can be made liable to an action for use and occupation. "If," he said, "the holding over by one is with the consent of the other, then the case falls within that of Harding v. Crethorne; but if such an inference were not warranted by the facts of the case," then he "should be disposed to consider the question before" he came to that conclusion." Christy v. Tancred &c. 9 M. & W. 446. The circumstances of this case rendered it unnecessary to do so, because from them the court of exchequer thought the consent of one defendant to the occupation by the other parties, might be presumed; and on a writ of error the court of exchequer chamber awarded a venire de novo. Tancred &c. v. Christy, 12 M. & W. 323. "If," said Parke, B., "they had thought that one joint tenant or tenant in common could bind his companion by holding over without his consent, they would not have directed a venire de novo in order to have the fact of assent or the contrary found by the jury. The case in error is therefore, in effect, a decision in support of the law as laid down by" the court of exchequer "in Christy v. Tancred." 15 M. & W. 168. And that court has since held that one tenant cannot bind his co-tenant merely by holding over; it accordingly gave judgment for the defendants, where there was nothing to shew that one of them assented to the holding over by the other. Draper v. Crofts &c. 15 M. & W. 166.

It is still more clear that if by the original lease the lessor contemplated having only one as lessee, and the others as sureties, the holding over by the original lessee will not make those who are substantially his sureties bound beyond their express engagement. Brewer v. Knapp &c. 1 Pick. 336.

9. Action for use and occupation proceeds on the ground of It will not lie against a trespasser.

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Where lands in possession of a tenant from year to year, are granted by the landlord upon trust to receive the rents, the grantee on recovering in ejectment and giving notice of his title to the tenant, may in an action against him for use and occupation, recover such of the rent in the tenant's hands at the time of the notice as was due at the day of the demise laid in the ejectment; but cannot in this form of action recover rent from that day to the time of recovering in the ejectment; for having during that period treated the defendant as a trespasser, he cannot for the same period treat him as tenant. Birch v. Wright, 1 T. R. 378; Oldershaw v. Holt, 12 Adol. & El. 597, 40 Eng. Com. Law Rep. 590; Sinnard v. McBride, 3 Hammond's Ohio Rep. 264; Butler v. Cowles, 4 Id. 205. The same principle has been applied where after a demise to the defendant for a year at a certain rent which was paid, he continued in possession against the plaintiff's will until he was turned out of possession by a proceeding for unlawful detainer. Featherstonhaugh v. Bradshaw, 1 Wend. 135. In such cases the proper remedy for the period of tortious detention and occupation is by an action of trespass for the mesne profits. If because of the death of the wrong doer that action cannot be maintained, neither will assumpsit for use and occupation lie against his executor or administrator. 3 Hammond's Ohio Rep. 264, 4 Id. 205.

So in other cases, the action of assumpsit for use and occupation, will not lie against a man who took and kept a tortious possession of the plaintiff's land, Ryan v. Marsh's adm'r, 2 Nott & McCord 156; Stockett v. Watkins's adm`rs, 2 Gill & J. 339; Cropps v. Blank, 9 Dow. & Ry. 480, 22 Eng. Com. Law Rep. 394; nor against his representative, 2 Nott & McCord 156.

The action cannot be maintained unless there be a contract either express or implied. Wharton v. Fitzgerald, 3 Dall. 503. Allen v. Thayer, 17 Mass. 301; Patch v. Loring, 17 Pick. 336; Lloyd v. Hough, 1 How. 159. When so far from its appearing that the defendant came in under the plaintiff's license or permission, the defendant claims to hold adverse to the plaintiff's title, the court will not in this action try an ejectment. Pott v. Lesher, 1 Yeates 576. Indebitatus assumpsit will not lie in favour of a stranger for the purpose of trying his title; or by one of two litigating parties claiming the land: this action not depending on the validity of the plaintiff's title to the estate, but on a con

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tract between the parties either express or implied. &c. v. Jenkins, 14 Mass. 96; Boston v. Binney, 11 Pick. 9. As it is founded on such contract, it will not lie against a man who entered on the land as his own claiming title; notwithstanding since such entry there may have been a decree establishing the land to be the plaintiff's. Richey v. Hinde, 6 Hammond's Ohio Rep. 371.

10. Whether action for use and occupation will lie against vendor or vendee.

There must be a holding by the permission of the plaintiff. If a vendor having conveyed a moiety of five houses to the plaintiff, remains in possession of one, there is in that, by itself, no sufficient ground for an action by the vendee against the vendor for use and occupation. Tew v. Jones, 13 M. & W. 12. "If," said Rolfe, B., "a vendor remains in possession by agreement, the terms of that agreement will speak for themselves; if not, he is a wrong doer and may be turned out by ejectment and is liable in trespass for mesne profits." S. C.

It has sometimes been attempted to maintain the action for use and occupation against a vendee who after entering into possession refused to complete his purchase. Hearn &c. v. Tomlin, Peake's N. P. Cas. 192; Kirtland v. Pounsett, 2 Taunt. 145.

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In New York, it is held that this action will not lie against one who entered under a contract for a deed to him as purchaSmith v. Stewart, 6 Johns. 46; Bancroft v. Wardwell, 13 Johns. 489. These decisions were approved and followed by the court of appeals of Kentucky in a case where there seemed to have been no tender by the vendor of a conveyance nor offer on his part to carry into execution the contract; and no refusal by the vendee to accept the conveyance and perform the terms of the contract on his part. Johnson v. Beauchamp, 9 Dana 125. The same court has also decided that assumpsit for use and occupation cannot be maintained by a vendor against his vendee to recover the value of the vendee's use of the land between the date of the contract of sale and a virtual rescission of that contract by a judgment for damages against the vendor for failing to convey the legal title. Jones &c. v. Tipton, 2 Dana 295. And nothing opposed to the rule of these cases is to be found in the first decision made on the subject by the supreme court of Massachusetts. Little &c. v. Pearson's adm'rs, 7 Pick. 301.

In the court of exchequer one of the judges (Richards, C. B.) thought from the decision in Hearn v. Tomlin, that had the

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