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in either case would have no existence be be sufficient ;28 that mere occupancy does not of tween parties."

itself necessarily imply the relation of landWhere the relation of landlord and tenant lord and tenant, but that the character of the does not exist, the possession is to be con occupancy and the intention of the parties as sidered hostile. 18

evinced by their conduct toward each other In the action for use and occupation, it

must be considered, for as this relation exmust be averred in the declaration that the

ists, only by virtue of a contract, express or land was occupied by permission of the plain- implied, the occupancy must be under such tiff or at the request of the defendant, 19 and

circumstances that a contract can be fairly where it contains no allegations of any facts

implied, and this can never be done “unless showing that the relation of landlord and

the entry was by permission of the landlord, tenant subsisted between them, at the time of

either express or implied, and in subordination

of his title," hence, "express permission the alleged use and occupation, it fails to state a cause of action, and a demurrer to it

given by the owner to one who is in posseswill be sustained. 20

sion tortiously, will not convert bis occupancy In one case the defendant was in occupation

into a tenancy unless he accepts such permis

sion and holds in pursurance of it. of the premises when the plaintiff became the purchaser and remained in possession

Therefore, it is erroneous to say that mere more than two months against the latter's

proof of occupancy, is sufficient to establish consent. It was admitted that the defend

a tenancy. The owner must go farther and ant never recognized the plaintiff as his land

show an occupancy under such circumstances lord, or agree to pay him rent for the use of

that a contract, express or implied, can be the premises. The court held that the rela

predicated thereon, which can never be done tion of the parties did not necessarily suggest

unless the original entry were lawful or the a tenancy, and a promise to pay rent would

occupancy during the period for which rent

is claimed was with the assent of the owner, not be implied.21

express or implied."26 In a Georgia case it is said that a contract

A few cases will be sufficient to illustrate may be implied from the title of the plaintiff

this rule. Hurley v. Lamoreaux, 27 and the occupation of the defendant.

a suit for use and occupation of certain “These being proven a contract will be in

premises, in the nature of assumpsit. The

complaint contained no allegations of any 2. The Action Will not lie Against a Tres facts showing that the relation of landlord passer.-Hence, under these principles it is

and tenant subsisted between the parties at uniformly held that this action can not be

the time of the alleged use and occupation. maintained against a mere trespasser ;23 that A demurrer to the petition was sustained bea trespasser can not be converted into a ten cause it failed to state a cause of action—the ant without bis consent ;24 that if the posses court holding that this action lies “only sion is not under contract, it must at least be where the relation of landlord and tenant permissive, for a tortious occupation will not subsists between the parties, founded on

agreement express


The 17 Id.; Wood v. Wilcox, 1 Denio, 37; Merrill v. Bul court further observed: "The plaintiff lock, 105 Mass. 486, 490.

appears to claim that he has framed his Espy v. Fenton, 5 Oregon, 423. 18 Taylor's Land. & Ten., $ 651; Bradley v. Daven

complaint upon the theory of waiving a torport, 6 Conn. 1; Hayes v. Warren, 2 Stra. 933.

tious entry and occupation of the premises 20 Hurley v. Lamoreaux, 29 Minn. 138; 8. C., 12 N. by the defendant, and suing upon an implied W. Rep. 447.

21 Coben v. Kyler, 27 Mo. 122. See The Aull Say. Bk. v. Aull, 80 Mo. 199, 201; Edmonson v. Kite, 43

25 Hathaway V. Ryan, 35 Cal. 188; Murdock Mo. 176, 178.

Brooks, 38 Cal. 596.

26 Wood's Land. & Ten., 6-10. » Mercer v. Mercer, 12 Ga. 421. Citing Chitty on Contr., 573; 5 B. & Ald. 322; 3 N. & P. 40; 6 Ad. &

27 29 Minn. 138; s. C., 12 N. W. Rep. 447.

28 Citing Taylor's Land. & Ten., $ 636; Abbott's Trial El. 854.

Ev., 351; Carpenter v. U. S., 17 Wall. 487; Boston v. 23 Taylor's Land. & Ten., $ 636.

Binney, 11 Pick. 1; Mayo v. Fletcher, 14 Pick. 525; 24 Hurley v. Lamoreaux, 29 Mion. 138; $. C., 12 N. Ackman v. Lyman, 20 Wis. 454; Holmes v. Williams, W. Rep. 447.

16 Minn. 164.




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contract to pay for use and occupation. One sum arose out of such notice, demand and obstacle in the way of this claim is that no occupancy, but that during the whole of such tortious entry or occupation is in any way

time the defendant was a mere trespasser, alleged. But the insuperable answer to it is and consequently the action must fail. found in the authorities above cited, 29 which The rule announced in National Oil Refinhold, in effect, that a trespasser cannot be ing Co. v. Bush,34 does not seem to accord converted into a tenant without his consent. with the above. In that case, the action was

In Marquette, etc., R. R. Co. v. Harlow, 31 assumpsit for use and occupation. The tenHarlow sued the railroad company for rent

ant claimed to hold under a written agreefor the use and occupation of the land occu

ment. The landlord denied that the agreepied for its tracks. There was no evidence

ment was in force, and notified the tenant of any agreement to pay rent or for the use that he would eject him in ten days, and hold and occupation of the land and the only him liable in damages, which notice three question of liability arose out of what was

days thereafter was followed by another, noclaimed to be the implied obligation. The tifying him that the landlord considered him testimony showed that the land was entered a trespasser. The tenant remained in posupon by the company without H's consent or session sometime thereafter, and then surknowledge, but when the company had taken rendered the premises. The trial court subpossession he gave consent to building and mitted to the jury the question, whether or grading the road, but told the company that

not the tenant was a trespasser. This the it was to gain no rights of the soil, that in his Supreme Court held proper. The trial court allowing it to grade it was to gain no rights instructed the jury that they must find some whatever. H. never offered to make a deed new contract between the parties to rebut the to the company of the land and the company presumption (that the tenant was

a trespasnever asked for one, and the company was ser) arising from the above notices. In holdnot asked for rent until just prior to the in ing this to be error, the Supreme Court said:* stitution of this action. H. said that he had "Such contract was not necessary to the mainrepeatedly told the company that it was a

tenance of the action; it is not necessarily trespasser, but had never given it notice to

founded upon a specific contract, written or quil. The court held that, from the above

oral, but upon the use of the premises. The facts, the relation of landlord and tenant

occupant may be, in fact, a trespasser, but could not be inferred and the action must

the owner of the tenement may waive the

trespass and recover in assumpsit, and it does Gallagher v. Hinelberger,33 was an action

not lie with the tort-feasor to defeat him by for rent against a trespasser of certain lands.

interposing his own wrong. To tell the jury, During the defendant's occupancy he was

therefore, that they must find some new connotified by the owner, that the rent therefor

tract between the parties, in order to rebut was a certain sum per annum,

which would

the presumption arising from the notices, was be demanded as a condition for its further

error, for that presumption might well be reoccupancy, but defendant refused to pay

butted by the subsequent act of the parties." such rent as being too much, but promised to

But the Supreme Court seemed to be of the "make it right," and continued in possession.

opinion that the defendant was a trespasser The plaintiff from month to month made out

—that is, if the plaintiff had so treated him

his action could not be maintained.3 and presented bills at a pro rata amount of the whole rent demanded. Defendant refused

The language of the court in this case to make payment. The court held that no

seems to be in full accord with the Georgia express contract for the payment of such

doctrine, as announced in Mercer v. Mercer,5 and against the general current of authority.

fail. 32

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3. Summary. From this review of the au- feat a recovery by interposing his own wrongthorities it has been seen that the courts, with ful act. 39 singular unanimity, declare that a trespasser 4. ObservationsThe Doctrine Examined.cannot be held to pay rent or a reasonable

Assuming that the relation of landlord and sum for the use and occupation of lands or

tenant is indispensable to entitle the owner of tenements, but that before a recovery can be

the premises to maintain his action, the conhad, the relation of landlord and tenant must

clusion that a mere trespasser cannot be held, be shown to exist between the parties, and to

would seem to be irresistible. And hence it sustain this relation there must be a contract,

appears that upon the assumption of this fact either express or implied, and hence it is said

rests the soundness of this doctrine. that as the bare occupancy alone of a mere trespasser can, in no sense, be deemed a

Why must this relation exist? If the tresholding in pursuance of an implied permis- passer knowingly occupies and uses premises sion of the landlord—such holding being tor

not his own, deriving a benefit therefrom, tious only—and as a contract, either express

consistent with what principle of reason or or implied, cannot be predicated thereon ;

justice can it be said that he should not be therefore, the conclusion is reached, that to

held to pay for such use? Is the answer that find that the relation exists under such cir

by the mere occupancy the supposed indiscumstances would be to convert the trespas

pensable condition upon wbich the action is ser into a tenant without his consent, and to

assumed to rest, to-wit, the relation of landfind against the clear intention of the parties.

lord and tenant, is not created, a sufficient Hence the decisions leave it with the wrong

reason? In other words, does the absence of

this relation create a justifying excuse to a doer, to say whether he considers himself a

court in dismissing the action? thus denying tenant of the owner, and whether it is his will

a suitor the redress to which, it would seem, to pay a reasonable amount for the benefit derived from his use and occupancy of prem

according to the plainest principles of reason ises knowingly not his own. If he made no

and justice, he is entitled, by reason of the contract to pay for such use and occupancy,

infringement of a property right, ever held and is not in possession in pursuance of per

sacred by our law. Though it clearly apmission from the owner, but by virtue of his

pears that the plaintiff's rights have been in

vaded by the defendant's wrong-doing, that own will only, and he declares that it was not his intention to pay, but derive what benefit

his action is meritorious, and that he has been he could from his neighbor's property until

diligent in asserting it, yet, according to this ejected, the decisions declare that he cannot

reiterated and persistently followed doctrine, be held, as the “relation of landlord and ten

if the latter has not agreed, or if from his acts

it cannot be inferred that he intended to reant" cannot be implied from such holding. But if he takes possession as a trespasser,

munerate the former for the benefits received, and afterwards holds in pursuance of permis

the wrong must go unredressed. sion of the owner, he can be held, for the This rule is not in harmony with the genholding, in pursuance of permission," con- eral doctrine of implied promises. It is anverts the trespasser into a tenant with his con- tagonistic to the analogous rule applied to sent. That is to say, in the case supposed, personal property. "With respect to goods, consent of the trespasser is the controlling it is a long established rule, that the owner, element in determining the character of the from whom they have been tortiously taken, occupancy, for if the wrong-doer insists that may in many cases waive the tort, as it is exhe is not holding as tenant, he must still be pressed, and state his demand as arising on considered a trespasser, and, therefore, the contract. It is competent for him to treat indispensable relation of landlord and ten- the party liable to his action as a purchaser, ant, upon which a recovery must be ground- an agent or a bailee, whose use and disposal ed, cannot be said to exist. Hence this doc- of the goods is thereby sanctioned and contrine, in effect, permits the tort-feasor to de- firmed; and then the value of the goods as a

v. Pierce, 1 Camp. 467; Hull v. Vaughan, 6 Price, 157; 2 Saund. Pl. & Ev. 890; Chitty on Contr., 332.

3 National Oil Refining Co. v. Bush, supra.

40 ܙܕ

fair compensation for the use of them, is re- has received a beneficial value without paycoverable and to be assessed in damages.' ing therefor, and it seems grossly inequitable

With reference to personal property, in all that he should be permitted to retain it. The cases where the defendant has derived some injustice is more palpable when it is considbenefit from his infringement of the plaint- ered that the defendant wrongfully obtains iff's right, the latter may waive the tort, and the benefit. The eminently just and equitasue on the implied contract. Thus, if the ble principle that there is an implied obligathing is money, the defendant must have re- tion to pay therefor whenever money or proceived it,41 or if services, he must have de- perty is received, should be applied with rived benefit from them. 42

equal force in the two classes of cases, withThe essence of the right to waive the tort out reference to the intent of the party beneand sue on the implied promise seems to be fited. There are numerous cases where from the benefit resulting to the defendant, for

the circumstances the law implies a legal ob unless he receives some advantage from his ligation and a promise, though there was no wrong the plaintiff is denied an action in as- express promise and, no intent between the sumpsit.

parties to enter into a contract.44 It further be observed that where a may

In commenting on the palpable injustice of promise is implied, it is because the party to

the doctrine under consideration, the learned be charged intended it should be, or because

editor of the American Law Review, after natural justice plainly requires it, in consid

referring to the distinction between personal eration of some benefit received. 43

and real property in this respect, said: “Al

though there may have been in ancient times It would seem to an ordinary mind that

some foundation for the distinction between natural justice requires that these principles, which are constantly recognized and enforced

real and personal property in this regard, with reference to wrongs touching personal

real property in modern times has become lit

tle more than a mere commercial property, property, should be invoked in like manner

and no reason whatever exists for keeping up concerning wrongs to real property, as in ca

this distinction. The rule which gives such ses of the character under consideration. Can

an action in respect to the use of personal a just distinction be drawn between a beneficial use of personal and real property? In

property is founded in the most obvious con

siderations of justice. The law ex æquo bono each case the common ground of equity is

raises or implies a promise on the part of the that the defendant, upon his own request,

taker of a chattel to pay the owner what its

use is reasonably worth and to recover this 40 Per Jackson, J., in Cummings v. Noys, 10 Mass. 436. “Sundry cases to this effect are stated ia Hambly

the owner might, at common law, sue in as v. Trott, Cowp. 371. As if one take a horse from sumpsit. The denial of the rule in the case another and bring him back again, the owner may maintain trespass against the wrongdoer; or, after his

of real property not only breaks in upon the death, an action for the use and hire of the horse uniformity of the law in an important respect, against the executor. So, in the like case, the owner but it leads frequently to injustice. In many might waive the trespass as against the original taker, and bring trover against him. 1 Burr. 31. So in John

cases it will be difficult to determine upon son v. Spiller, Doug. 167, note 55, it was holden that a the facts whether the person using and occudemand in trover may be proved as a debt against a

pying the land entered under a license or as bankrupt, if the demand be of such a nature that it can be liquidated, as for the value of goods converted a mere trespasser. If he entered under a liby the bankrupt.” Id.

cense, the request for the license will support 41 Gilmore v. Milburn, 12 Pick. 120.

the implication of a promise to pay for the 42 Consistent with this rule, if the defendant's cows have been wrongfully pastured on the plaintiff's land,

use of the land what it is reasonably worth, the latter may waive the trespass and recover in as- according to the general doctrine of implied sumpsit ; Welch v. Bogg, 12 Mich. 42; See Webster v. Drinkwater, 5 Greenleaf, 319; s. C. 17 Am. Dec. 238,

promises. But if it turns out, upon the eviwith note, where this doctrine is fully and elaborately

dence, that he entered as a trespasser, then discussed; see further, Halleck v. Myer, 16 Cal. 574; the plaintiff is driven at the trial to an amendFratt v. Clark, 12 Cal. 89; Beely v. Taylor, 5 Hill. 583; Barker v. Cory, 15 Ohio, 9; Howe v. Clancy, 53 Me.

ment of his petition or declaration ; in which 130; Boston R. Co. v. Dana, 1 Gray, 183.

13 Webster v. Drinkwater, supra; Birch v. Wright, 44 See in this connection, Paddock v. Kettredge, 31 1.T.R. 371.

Vt. 378; Ives v. Hulet, 12 Vt. 327.

case the difficulty ‘may arise that his amend

STATUTE OF LIMITATIONS. ment will change the nature of the action from an action ex contractu to an action ex

DYER V. WITTLER. delicto, and will hence not be admissible, at

Supreme Court of Missouri, April Term 1886. least under the modern codes of procedure.

1. Limitations-Statute of-Missouri-Real Estate If he finds himself in this dilemma, he will be - Who Affected.-The Missouri statute of limitations driven to a non-suit, and to the bringing of a only applies to those having a present existing right

to conimence an action or make an entry. new action. Now, a rule of law which results in putting a meritorious, and perhaps

2. Married Women-When Right of Action Accrues

- I wenty-four Years Limitation.—The Statute of diligent plaintiff, to this delay, expense, and

limitations does not begin to run against a married perhaps to a total loss of his right of action, woman or her heirs till the estate of her husband through the intervention of the Statute of ceases, after which ten years are allowed. Valle v.

Obenhause, 02 Mo. 81, to this extent overruled. Limitations, is neither founded in sense nor in justice; and it is a shame that the judicial

RAY, J., delivered the opinion of the Court. courts continue with ape-like servility to re- This is an action of ejectment, for certain real iterate it and re-state it in their decisions. It estate in the City of St. Louis, described in the is a thoroughly idiotic and obsolete rule.

amended petition, upon which the case was tried.

Suit was commenced in May 1878. The defence is It is a putrid reminiscence which

the statute of limitations of twenty-four years. demands the attention of legislatures.'' 45 Rev. Stat, Sect 3222.

The prevailing doctrine is, in itself, an ab- The reply is, that in the year 1938, the mother surdity, and rests upon an illogical and un- of the plaintiffs was the owner of the land in fee sound basis; it is in direct conflict with long

simple, having inherited it from her father; that

she was, at the time, the wife of Abner W. Dyer, settled and established rules, founded on emi

their father; that there was issue born alive of the nently just and equitable principles; it often

marriage in 1837, that their marital relation conleads to the grossest and most palpable in- tinued until 1869, when it was dissolved by the justice, and no degree of respect or reverence

death of the mother; that the father survived and

died in 1870; that the plaintiffs are the only surshould permit it to be laid up among the fun

viving issue of the marriage, and claim the premdamentals of an enlightened jurisprudence.

ises as heirs of their said mother. That it should be still reiterated and followed At the trial, evidence was given tending to supas a rule upon which rights are determined port this reply. The court, under appropriate seems inconceivable; but it may be largely evidence, in that behalf, offered by the defenddue to the conservatism of the bench which

ants, gave the following declarations of law,

which drove the plaintiffs to a non suit: is always slow to cast aside rules which have

“The court, of its own motion, declares the law long existed, however unjust they may be. to be, that if defendants, or those under whom

The language of the Supreme Court of they claim, entered upon a tract of land, embracPennsylvania4e contains the germ which should ing the premises described in the petition herein, direct future judicial action. The courts

in the year 1846, claiming to own said tract under,

and by virtue of, a deed purporting to convey the should, with one accord, sweep the last ves

same to them in fee, and in that year enclosed tige of this doctrine from our law as a fossil- said tract with a fence, and improved and cultiization of condensed nonsense, unworthy to vated said tract, and occupied said tract, (or the rank as a legal maxim in the jurisprudence of

portion thereof described in the petition,) so enan enlightened people. If the courts refuse

closed and improved continuously from that time,

under such claim of title, up to the time of the to assume this responsibility legislation should

death of Abner W. Dyer, on or about the 25th of perform this work.

EUGENE McQUILLIN. June, 1870, and for three years next after his St. Louis, Mo.

death, and before the original petition in this case was filed, the plaintiffs are not entitled to

After an unsuccessful motion, to set * 20 Am. Law Rev. 568.

aside non suit, the plaintiffs took the case, by writ 46 National Oil Refining Co. v. Bush, supra.

of error, to the St. Louis Court of Appeals, where the ruling and judgment of the circuit court was affirmed; from which the plaintiffs bring the case here by writ of error.

From this record it appears, that the plaintiffs claim the property in question as the heirs of their mother, who, at and before 1846, when the


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