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11 GEO. 2, CAP. 19, USE AND OCCUPATION. 1007 sale, which went off on account of a defect in the vendor's title, was held not liable in this action on an implied contract arising from his possession before the contract went off. But if a party be let into possession under a contract for purchase, which afterwards goes off, he is liable to the vendor in use and occupation, for the period during which he continues in posses- sion after the contract goes off. While the agreement subsists he is not bound to pay for occupation. But if he remains in possession without any contract to purchase, he is a tenant at will, and, if the occupation is bene- ficial to him, the law will imply a contract to pay a reasonable sum by way of compensation for such occupation, Howard v. Shaw, 8 M. & W. 118.24 In Hoffar v. Dement it was held that coparceners (as children of intestates are under our descent-laws), constituting but one heir, could not sepa- rately maintain an action against a person receiving the rent of their lands as trustee, nor recover in separate actions, upon an implied de- mise, on a count for use and occupation. The converse case in this re- spect is Last v. Dinn, 28 L. J. Exch. 94, where the plaintiffs were children and appointees under the will of A. The tenant, who had taken the premises from A., paid rent to an agent of the family, who gave a receipt "on account of the family of the late A.," and it was held evidence of a joint letting and a tenancy to them jointly, although they were in fact tenants in common. But there need be no reversion in the plaintiff, as in case of a parol as- signment of a term, reserving a rent, for a conveyance may be supported as a lease which was intended to be so, though it pass all the lessor's in- terest, Pollock v. Stacey, 9 Q. B. 1033. And if there be an agreement not amounting to an actual demise, a party may maintain the action, though the agreement be by deed, Elliott v. Rogers, 4 Esp. 59. So if a man, under colour of a void agreement under seal, has occupied the land intended to be demised, he is liable in use and occupation, if the occupation were with the landlord's consent, otherwise in trespass, Anderson v. Critcher, 11 G. & J. 450.26 The action lies on the implied understanding where a permissive holding is established, and if a certain rent were reserved, the reservation may be used to show the quantum of recovery, Stockett v. Watkins supra; see Fisher v. Marsh, 34 L. J. Q. B. 177. However, the Statute, said Eyre C. J., in Naish v. Tatlock, 2 H. Black. 320, meant to provide an easy remedy in the simple case of actual occupation, leaving more complicated cases to their ordinary remedies. And it was there held, that where a tenant from year to year of a house at a yearly rent became bankrupt in the middle of the year, and his assignees entered and kept pos- session for the remainder of the year, the lessor could not maintain use and occupation against the assignees for the bankrupt's occupation as well as their own, without proving their special instance and request (as laid in the declaration) for the bankrupt to occupy during the time before have demanded before delivering the deed. Cf. Metropolitan Ry. Co. v. Defries, 1 Q. B. D. 189, 387; Leggott v. Ry. Co., L. R. 5 Ch. 716; Bennett v. Stone, (1903) 1 Ch. 509. 24 See Crouch v. Tregonning, L. R. 7 Ex. 88. 25 See Kinsey v. Minnick, 43 Md. 121; Emrich v. Union Co., 86 Md. 482; Bonaparte v. Thayer, 9S Md- 554; Falck v. Barlow, 110 Md. 159. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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