in either case would have no existence between parties. 17

Where the relation of landlord and tenant does not exist, the possession is to be considered hostile. 18

In the action for use and occupation, it must be averred in the declaration that the

land was occupied by permission of the plaintiff or at the request of the defendant,19 and where it contains no allegations of any facts showing that the relation of landlord and tenant subsisted between them, at the time of the alleged use and occupation, it fails to state a cause of action, and a demurrer to it

will be sustained.20

In one case the defendant was in occupation of the premises when the plaintiff became the purchaser and remained in possession more than two months against the latter's consent. It was admitted that the defendant never recognized the plaintiff as his landlord, or agree to pay him rent for the use of the premises. The court held that the relation of the parties did not necessarily suggest a tenancy, and a promise to pay rent would not be implied.21

In a Georgia case it is said that a contract may be implied from the title of the plaintiff and the occupation of the defendant. "These being proven a contract will be inferred.''

2. The Action Will not lie Against a Trespasser.-Hence, under these principles it is uniformly held that this action can not be maintained against a mere trespasser;23 that a trespasser can not be converted into a tenant without his consent;24 that if the possession is not under contract, it must at least be permissive, for a tortious occupation will not

17 Id.; Wood v. Wilcox, 1 Denio, 37; Merrill v. Bullock, 105 Mass. 486, 490.

18 Espy v. Fenton, 5 Oregon, 423.

19 Taylor's Land. & Ten., § 651; Bradley v. Davenport, 6 Conn. 1; Hayes v. Warren, 2 Stra. 933.

Hurley v. Lamoreaux, 29 Minn. 138; s. C., 12 N. W. Rep. 447.

21 Cohen v. Kyler, 27 Mo. 122. See The Aull Say. Bk. v. Aull, 80 Mo. 199, 201; Edmonson v. Kite, 43 Mo. 176, 178.

22 Mercer v. Mercer, 12 Ga. 421. Citing Chitty on Contr., 873; 5 B. & Ald. 322; 3 N. & P. 40; 6 Ad. & El. 854.

23 Taylor's Land. & Ten., § 636.

24 Hurley v. Lamoreaux, 29 Minn. 138; s. c., 12 N. W. Rep. 447.

be sufficient ;25 that mere occupancy does not of itself necessarily imply the relation of landlord and tenant, but that the character of the occupancy and the intention of the parties as evinced by their conduct toward each other must be considered, for as this relation exists, only by virtue of a contract, express or implied, the occupancy must be under such circumstances that a contract can be fairly implied, and this can never be done "unless the entry was by permission of the landlord, either express or implied, and in subordination of his title," hence, "express permission given by the owner to one who is in possession tortiously, will not convert his occupancy into a tenancy unless he accepts such permission and holds in pursurance of it. Therefore, it is erroneous to say that mere proof of occupancy, is sufficient to establish a tenancy. The owner must go farther and show an occupancy under such circumstances that a contract, express or implied, can be predicated thereon, which can never be done unless the original entry were lawful or the occupancy during the period for which rent is claimed was with the assent of the owner, express or implied.

26

A few cases will be sufficient to illustrate this rule. Hurley v. Lamoreaux,27 was a suit for use and occupation of certain premises, in the nature of assumpsit. The complaint contained no allegations of any facts showing that the relation of landlord and tenant subsisted between the parties at the time of the alleged use and occupation. A demurrer to the petition was sustained because it failed to state a cause of action-the court holding that this action lies "only where the relation of landlord and tenant subsists between the parties, founded on agreement express or implied. "28 The court further observed: "The plaintiff appears to claim that he has framed his complaint upon the theory of waiving a tortious entry and occupation of the premises by the defendant, and suing upon an implied.

25 Hathaway v. Ryan, 35 Cal. 188; Murdock v. Brooks, 38 Cal. 596.

26 Wood's Land. & Ten., 6-10.

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

28 Citing Taylor's Land. & Ten., § 636; Abbott's Trial Ev., 351; Carpenter v. U. S., 17 Wall. 487; Boston v. Binney, 11 Pick. 1; Mayo v. Fletcher, 14 Pick. 525; Ackman v. Lyman, 20 Wis. 454; Holmes v. Williams, 16 Minn. 164.

contract to pay for use and occupation. One obstacle in the way of this claim is that no tortious entry or occupation is in any way alleged. But the insuperable answer to it is found in the authorities above cited,29 which hold, in effect, that a trespasser cannot be converted into a tenant without his consent.''30

31

In Marquette, etc., R. R. Co. v. Harlow,3 Harlow sued the railroad company for rent for the use and occupation of the land occupied for its tracks. There was no evidence of any agreement to pay rent or for the use and occupation of the land and the only question of liability arose out of what was claimed to be the implied obligation. The testimony showed that the land was entered upon by the company without H's consent or knowledge, but when the company had taken possession he gave consent to building and grading the road, but told the company that it was to gain no rights of the soil, that in his allowing it to grade it was to gain no rights whatever. H. never offered to make a deed to the company of the land and the company never asked for one, and the company was not asked for rent until just prior to the institution of this action. H. said that he had repeatedly told the company that it was a trespasser, but had never given it notice to quit. The court held that, from the above facts, the relation of landlord and tenant could not be inferred and the action must fail. 32

33

Gallagher v. Hinelberger, was an action for rent against a trespasser of certain lands. During the defendant's occupancy he was notified by the owner, that the rent therefor was a certain sum per annum, which would be demanded as a condition for its further occupancy, but defendant refused to pay such rent as being too much, but promised to "make it right," and continued in possession. The plaintiff from month to month made out and presented bills at a pro rata amount of the whole rent demanded. Defendant refused to make payment. The court held that no express contract for the payment of such

29 See authorities in last note.

30 See Henwood v. Chesman, 3 Serg. & R. (Pa.) 500. 31 37 Mich., 554.

32 See Dalton v. Landahn, 30 Mich. 349; Hogsett v. Ellis, 17 Mich. 351.

33 57 Ind. 63.

sum arose out of such notice, demand and occupancy, but that during the whole of such time the defendant was a mere trespasser, and consequently the action must fail.

34

The rule announced in National Oil Refining Co. v. Bush, does not seem to accord with the above. In that case, the action was assumpsit for use and occupation. The tenant claimed to hold under a written agreement. The landlord denied that the agreement was in force, and notified the tenant that he would eject him in ten days, and hold him liable in damages, which notice three days thereafter was followed by another, notifying him that the landlord considered him a trespasser. The tenant remained in possession sometime thereafter, and then surrendered the premises. The trial court submitted to the jury the question, whether or not the tenant was a trespasser. This the Supreme Court held proper. The trial court instructed the jury that they must find some new contract between the parties to rebut the presumption (that the tenant was a trespasser) arising from the above notices. In holding this to be error, the Supreme Court said: "Such contract was not necessary to the maintenance of the action; it is not necessarily founded upon a specific contract, written or oral, but upon the use of the premises. The occupant may be, in fact, a trespasser, but the owner of the tenement may waive the trespass and recover in assumpsit, and it does not lie with the tort-feasor to defeat him by interposing his own wrong. To tell the jury, therefore, that they must find some new contract between the parties, in order to rebut the presumption arising from the notices, was error, for that presumption might well be rebutted by the subsequent act of the parties." But the Supreme Court seemed to be of the opinion that the defendant was a trespasser -that is, if the plaintiff had so treated him his action could not be maintained.36

The language of the court in this case seems to be in full accord with the Georgia doctrine, as announced in Mercer v. Mercer, and against the general current of authority. 38

34 88 Pa. St. 335, 340-341. 35 P. 341.

36 See Goddard v. Hall, 55 Maine, 579; Featherstonhaugh v. Bradshaw, 1 Wend. 134.

37 12 Ga. 421.

38 See Chambers v. Ross, 25 N. J. L. 293, 294; Dean

3. Summary.-From this review of the authorities it has been seen that the courts, with singular unanimity, declare that a trespasser cannot be held to pay rent or a reasonable sum for the use and occupation of lands or tenements, but that before a recovery can be had, the relation of landlord and tenant must be shown to exist between the parties, and to sustain this relation there must be a contract, either express or implied, and hence it is said that as the bare occupancy alone of a mere trespasser can, in no sense, be deemed a holding in pursuance of an implied permission of the landlord-such holding being tortious only and as a contract, either express or implied, cannot be predicated thereon; therefore, the conclusion is reached, that to find that the relation exists under such cir

cumstances would be to convert the trespasser into a tenant without his consent, and to find against the clear intention of the parties.

Hence the decisions leave it with the wrongdoer, to say whether he considers himself a tenant of the owner, and whether it is his will to pay a reasonable amount for the benefit derived from his use and occupancy of premises knowingly not his own. If he made no contract to pay for such use and occupancy, and is not in possession in pursuance of permission from the owner, but by virtue of his own will only, and he declares that it was not his intention to pay, but derive what benefit he could from his neighbor's property until ejected, the decisions declare that he cannot be held, as the "relation of landlord and tenant" cannot be implied from such holding. But if he takes possession as a trespasser, and afterwards holds in pursuance of permission of the owner, he can be held, for the holding, in "pursuance of permission," converts the trespasser into a tenant with his consent.

That is to say, in the case supposed, consent of the trespasser is the controlling element in determining the character of the occupancy, for if the wrong-doer insists that he is not holding as tenant, he must still be considered a trespasser, and, therefore, the indispensable relation of landlord and tenant, upon which a recovery must be grounded, cannot be said to exist. Hence this doctrine, in effect, permits the tort-feasor to de

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

feat a recovery by interposing his own wrongful act.39.

4. Observations—The Doctrine Examined.Assuming that the relation of landlord and tenant is indispensable to entitle the owner of the premises to maintain his action, the conclusion that a mere trespasser cannot be held, would seem to be irresistible. And hence it appears that upon the assumption of this fact rests the soundness of this doctrine.

Why must this relation exist? If the trespasser knowingly occupies and uses premises not his own, deriving a benefit therefrom, consistent with what principle of reason or justice can it be said that he should not be held to pay for such use? Is the answer that by the mere occupancy the supposed indispensable condition upon which the action is

assumed to rest, to-wit, the relation of landlord and tenant, is not created, a sufficient reason? In other words, does the absence of this relation create a justifying excuse to a court in dismissing the action? thus denying a suitor the redress to which, it would seem, according to the plainest principles of reason and justice, he is entitled, by reason of the infringement of a property right, ever held sacred by our law. Though it clearly appears that the plaintiff's rights have been invaded by the defendant's wrong-doing, that his action is meritorious, and that he has been diligent in asserting it, yet, according to this. reiterated and persistently followed doctrine, if the latter has not agreed, or if from his acts it cannot be inferred that he intended to remunerate the former for the benefits received, the wrong must go unredressed.

This rule is not in harmony with the general doctrine of implied promises. It is antagonistic to the analogous rule applied to personal property. "With respect to goods, it is a long established rule, that the owner, from whom they have been tortiously taken, may in many cases waive the tort, as it is expressed, and state his demand as arising on contract. It is competent for him to treat the party liable to his action as a purchaser, an agent or a bailee, whose use and disposal of the goods is thereby sanctioned and confirmed; and then the value of the goods as a

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

fair compensation for the use of them, is recoverable and to be assessed in damages." 40 With reference to personal property, in all cases where the defendant has derived some benefit from his infringement of the plaint-❘ iff's right, the latter may waive the tort, and sue on the implied contract. Thus, if the thing is money, the defendant must have received it, or if services, he must have derived benefit from them.42

The essence of the right to waive the tort and sue on the implied promise seems to be the benefit resulting to the defendant, for unless he receives some advantage from his wrong the plaintiff is denied an action in assumpsit.

It may further be observed that where a promise is implied, it is because the party to be charged intended it should be, or because natural justice plainly requires it, in consideration of some benefit received. 43

It would seem to an ordinary mind that natural justice requires that these principles, which are constantly recognized and enforced with reference to wrongs touching personal property, should be invoked in like manner concerning wrongs to real property, as in cases of the character under consideration. Can a just distinction be drawn between a beneficial use of personal and real property? In each case the common ground of equity is that the defendant, upon his own request,

40 Per Jackson, J., in Cummings v. Noys, 10 Mass. 436. "Sundry cases to this effect are stated in Hambly v. Trott, Cowp. 371. As if one take a horse from another and bring him back again, the owner may maintain trespass against the wrongdoer; or, after his death, an action for the use and hire of the horse against the executor. So, in the like case, the owner might waive the trespass as against the original taker, and bring trover against him. 1 Burr. 31. So in Johnson v. Spiller, Doug. 167, note 55, it was holden that a demand in trover may be proved as a debt against a bankrupt, if the demand be of such a nature that it can be liquidated, as for the value of goods converted by the bankrupt." Id.

41 Gilmore v. Milburn, 12 Pick. 120.

42 Consistent with this rule, if the defendant's cows have been wrongfully pastured on the plaintiff's land, the latter may waive the trespass and recover in assumpsit; Welch v. Bogg, 12 Mich. 42; See Webster v. Drinkwater, 5 Greenleaf, 319; s. c. 17 Am. Dec. 238, with note, where this doctrine is fully and elaborately discussed; see further, Halleck v. Myer, 16 Cal. 574; Fratt v. Clark, 12 Cal. 89; Beely v. Taylor, 5 Hill. 583; Barker v. Cory, 15 Ohio, 9; Howe v. Clancy, 53 Me. 130; Boston R. Co. v. Dana, 1 Gray, 183.

43 Webster v. Drinkwater, supra; Birch v. Wright, 1.T. R. 371.

has received a beneficial value without paying therefor, and it seems grossly inequitable that he should be permitted to retain it. The injustice is more palpable when it is considered that the defendant wrongfully obtains the benefit. The eminently just and equitable principle that there is an implied obligation to pay therefor whenever money or property is received, should be applied with equal force in the two classes of cases, without reference to the intent of the party benefited. There are numerous cases where from the circumstances the law implies a legal ob ligation and a promise, though there was no express promise and, no intent between the parties to enter into a contract.44

In commenting on the palpable injustice of the doctrine under consideration, the learned editor of the American Law Review, after referring to the distinction between personal and real property in this respect, said: “Although there may have been in ancient times some foundation for the distinction between real and personal property in this regard, real property in modern times has become little more than a mere commercial property, and no reason whatever exists for keeping up this distinction. The rule which gives such an action in respect to the use of personal property is founded in the most obvious considerations of justice. The law ex æquo bono raises or implies a promise on the part of the taker of a chattel to pay the owner what its use is reasonably worth and to recover this the owner might, at common law, sue in as sumpsit. The denial of the rule in the case of real property not only breaks in upon the uniformity of the law in an important respect, but it leads frequently to injustice. In many cases it will be difficult to determine upon the facts whether the person using and occupyin pying the land entered under a license or as a mere trespasser. If he entered under a license, the request for the license will support the implication of a promise to pay for the use of the land what it is reasonably worth, according to the general doctrine of implied promises.

But if it turns out, upon the evidence, that he entered as a trespasser, then the plaintiff is driven at the trial to an amendment of his petition or declaration; in which

44 See in this connection, Paddock v. Kettredge, 31 Vt. 378; Ives v. Hulet, 12 Vt. 327.

case the difficulty may arise that his amendment will change the nature of the action from an action ex contractu to an action ex delicto, and will hence not be admissible, at least under the modern codes of procedure. If he finds himself in this dilemma, he will be driven to a non-suit, and to the bringing of a new action. Now, a rule of law which results in putting a meritorious, and perhaps diligent plaintiff, to this delay, expense, and perhaps to a total loss of his right of action, through the intervention of the Statute of Limitations, is neither founded in sense nor in justice; and it is a shame that the judicial courts continue with ape-like servility to reiterate it and re-state it in their decisions. It is a thoroughly idiotic and obsolete rule.

It is a putrid reminiscence which demands the attention of legislatures." 45 The prevailing doctrine is, in itself, an absurdity, and rests upon an illogical and unsound basis; it is in direct conflict with long settled and established rules, founded on eminently just and equitable principles; it often leads to the grossest and most palpable injustice, and no degree of respect or reverence should permit it to be laid up among the fundamentals of an enlightened jurisprudence. That it should be still reiterated and followed as a rule upon which rights are determined seems inconceivable; but it may be largely

due to the conservatism of the bench which is always slow to cast aside rules which have long existed, however unjust they may be. The language of the Supreme Court of Pennsylvania contains the germ which should direct future judicial action. The courts should, with one accord, sweep the last vestige of this doctrine from our law as a fossilization of condensed nonsense, unworthy to rank as a legal maxim in the jurisprudence of an enlightened people. If the courts refuse to assume this responsibility legislation should perform this work. EUGENE MCQUILLIN.

St. Louis, Mo.

45 20 Am. Law Rev. 568.

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

STATUTE OF LIMITATIONS.

DYER V. WITTLER.

Supreme Court of Missouri, April Term 1886. 1. Limitations-Statute of-Missouri-Real Estate -Who Affected.-The Missouri statute of limitations only applies to those having a present existing right to commence an action or make an entry.

2. Married Women-When Right of Action Accrues -Twenty-four Years Limitation.-The Statute of limitations does not begin to run against a married woman or her heirs till the estate of her husband ceases, after which ten years are allowed. Valle v. Obenhause, 62 Mo. 81, to this extent overruled.

RAY, J., delivered the opinion of the Court.

This is an action of ejectment, for certain real estate in the City of St. Louis, described in the amended petition, upon which the case was tried. Suit was commenced in May 1878. The defence is the statute of limitations of twenty-four years. Rev. Stat, Sect 3222.

The reply is, that in the year 1838, the mother of the plaintiffs was the owner of the land in fee simple, having inherited it from her father; that she was, at the time, the wife of Abner W. Dyer, their father; that there was issue born alive of the marriage in 1837, that their marital relation continued until 1869, when it was dissolved by the death of the mother; that the father survived and died in 1870; that the plaintiffs are the only surviving issue of the marriage, and claim the premises as heirs of their said mother.

At the trial, evidence was given tending to support this reply. The court, under appropriate evidence, in that behalf, offered by the defendants, gave the following declarations of law, which drove the plaintiffs to a non suit:

"The court, of its own motion, declares the law to be, that if defendants, or those under whom they claim, entered upon a tract of land, embracing the premises described in the petition herein, in the year 1846, claiming to own said tract under, and by virtue of, a deed purporting to convey the same to them in fee, and in that year enclosed said tract with a fence, and improved and cultivated said tract, and occupied said tract, (or the portion thereof described in the petition,) so enclosed and improved continuously from that time, under such claim of title, up to the time of the death of Abner W. Dyer, on or about the 25th of June, 1870, and for three years next after his death, and before the original petition in this case was filed, the plaintiffs are not entitled to recover." After an unsuccessful motion, to set aside non suit, the plaintiffs took the case, by writ 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