Thomas Gould vs. Samuel Thompson, 4 Met. 224

Shaw, C. J. Although in form this is indebitatus assumpsit on an account annexed, yet the charges in the account are for rent; and there being no lease, the only ground on which it can be sustained is that of a quantum meruit for use and occupation, to recover a reasonable satisfaction for the use of the premises. Whether the St. of 11 Geo.

II. c. 19, giving an action of assumpsit for use and occupation, is in force in this Commonwealth, as statute law, we think it unnecessary to decide ; the court being of opinion, that by a long course of practice, which must now be considered as the common law of the State, that action may be maintained for rent not reserved by deed. Codman v. Jenkins, 14 Mass. 93. Several cases were cited to prove that assumpsit would not lie for use and occupation, where the purchaser had entered under a parol contract of sale which had failed. In Kirtland v.

Pounsett, 2 Taunt. 145, it was argued by counsel, that there was no demise, express or implied, arising from such use of premises agreed to be sold, and of which the vendee takes possession under permission of the vendor. The cause, however, was not decided on that ground, but on the ground, that the use of the purchase money, which had been advanced, -was intended and must be presumed to be a compensation for the use and en joyment of the premises. But in the subsequent case of Hull v.

Vaughan, 6 Price, 157, where the foregoing case was reviewed, it was decided, on great consideration, overruling the direction of the judge at Nisi Prius, that where the relation of landlord subsisted by any contract, express, or implied by law, the action of assumpsit for use and occupation would lie ; and that such contract would be implied from the actual occupation and enjoyment of the premises, by permission of the owner, or other person having the power of disposal, when such use and occupation had been beneficial. The case of Boston v.

Binney, 11 Pick. 1, implies that assumpsit for use and occupation will lie, where one holds lands beneficially, by the permission of the owner. It did not lie in that case, because the defendant, during all the time for which the rent was demanded in the action, held adversely to the title of the plaintiffs.

In the present case, it appears that the defendant entered in Ip a parol agreement to purchase the house and lot of the plaintiff, of which' the house constituted the chief value ; that the defendant paid the amount of the agreed purchase money in advance ; that by permission of the vendor, the purchaser entered and took possession ; but that in about four days, and before the contract was executed by the delivery of the deed, the house was destroyed by fire.

Upon an action brought to recover back the purchase money, this court held, that as no deed had been given at the time of the fire, the house was at the risk of the vendor ; that' the loss was his loss ; that the purchaser was not bound to accept a deed of the land only, after the destruction of the house ; and that he had a right to recover the purchase money, as money paid on a consideration which had failed. Thompson v. Gould, 20 Pick. 134. Then the question arises, upon these facts, whether the purchaser was, at any time, and if so, for what term of time, the tenant of the vendor and owner.

And the court are of opinion, that when the defendant thus entered, he became tenant at will of the owner. When one enters on land, to use and occupy it, with the consent and permission of the owner, but for no definite time, he is tenant at will. Where, at common law, one makes a feoffment and delivers the deed, without livery of seizin, the feoffee is tenant at will. Co. Lit. 56 6. In the case at bar, the possession was given under an expectation that a deed would be given; but it was uncertain whether a deed would ever be given.

In fact, in consequence of an unforeseen event, none ever was or could be given; and therefore the purchaser, in the mean time, was the tenant at will of the owner. Had the deed in fact been given, pursuant to the parol agreement, then the tenancy at will would be considered as merged in the executed contract, which, by its terms, would relate back to the time that possession was given under that agreement. The next material question is, when this tenancy at will terminated.

The purpose for which the defendant entered was, to use and occupy the estate, temporarily, until the title could be completed, and then permanently. But by the destruction of the building, that purpose was wholly defeated, as it was afterwards adjudged. The tenement became useless to him, and he immediately vacated the possession of it. He refused to accept a deed when tendered to him, by the owner, which was notice to the owner that he no longer intended to take the title, in the expectation of completing which, he had entered ; and he shortly after brought his action to recover back the purchase money.

This appears to us decisive evidence of the determination of his will at the' time of the fire, and notice thereof to the owner, and that the tenancy at will cannot be extended beyond that time. The plaintiff therefore is entitled to judgment for the four days’ rent found by the jury. See Howard v. Shaw, 8 Mees. & Welsb. 118. Packer v. Gibbins, 1 Adolph & Ellis N. R. 421.