Randal D. Scales v. Richard W. Anderson, 26 Miss. 94

Mr. Justice Handy delivered the opinion of the court. This is an action of assumpsit for use and occupation of a tract of land. The declaration contains a count on a special promise to pay for the use and occupation, a count on the quantum meruit, and a count on the quantum valebat, for the rent of the premises; to which the defendant pleaded, 1. Non assumpsit; 2. Payment; and 3. That another' action was pending for the same cause of action; to the last of which pleas, there was a replication'of nul tiel record.

On the trial of that issue, the defendant offered a record of a proceeding of unlawful detainer, instituted against him by the plaintiff for the same premises, together with a written admission, that rent was claimed in that proceeding. That proceeding had been decided against the plaintiff, and was taken up and pending in this court. The court below decided the issue of nul tiel record for the plaintiff, and we think the decision correct, because, 1. The gist of that proceeding was to recover possession of the premises, and the rent was merely incidental; 2.

The amount of rent recovered could not have been more than fifty dollars, under the statute. Thus, that proceeding was quite different from the action then before the court. The facts of the case, as they appear by the record, are in substance, that previous to the institution of this suit,,the land in question had been in controversy between Anderson and the New York and Mississippi Land Company, and had been sold by the latter to one Dearing, who took possession, and verbally sold it to the defendant Scales, who also took possession.

Afterwards, Anderson filed a bill in chancery against the land company and Dearing, in which the land was decreed to him; and in Jan., 1847, he made a proposition in writing to Dearing, or to Dearing and Scales, in relation to the sale of certain other lands to one or both of them, which proposition contained this clause: “ I also agree, that Mr. Scales may remove his buildings off the west half of

section 21,” the land in question. Dealing acceded to the proposition, but Scales did not join in the purchase. Scales occupied and cultivated the west half of

section 21 in the year 1847, removed part of his buildings from it, and sold the residue. In the spring of that year, Anderson claimed the right of possession of the land, which was' denied by Scales, who set up an adverse claim to it; whereupon Anderson instituted proceedings for the unlawful detainer. It also appears, that early in January, 1847, Anderson had sold the land in question to a third party,- and-in April of that year executed his bond to make title when the purchase-money should be paid; part of the purchase-money was paid at the time, but the bond was silent as to possession.

This is all the evidence material to the determination of the case. On the trial, several questions as to the admission or rejection of evidence arose, which are not necessary to be considered under the view we take of the merits of the case. It is too well settled to admit of controversy, that the action of assumpsit for mere use and occupation, cannot be maintained, except where the relation of landlord and tenant, either expressly or impliedly, subsists. 1 T. R. 378; 10 Gill and Johns. 149; 6 J. R. 46; 13 Ib. 489.

Being an action ex con-tractu, it necessarily follows, that no action of that nature can be supported where there is no pretence of a contract, and certainly not where the possession is claimed adversely. Here there is a total want of evidence to show a contract. The only circumstances tending at all to show a contract are, the expression in the proposition to Dearing and Scales, in January, 1847, in reference to the removal of buildings by Scales, the possession of the premises by Scales, and his removal and sale of the buildings.

But he is not shown to have acceded to this proposition, or to have acted on any thing contained in it; and the removal and sale of the buildings are entirely consistent with his claim of rightful possession. It is true, that such an actio a lies upon.an implied contract, as where the possession is permissive, as in the case of holding over after the expiration of a lease, and in other cases of tenancy at sufferance.

But there is no principle or authority by which it can be justified in. a ease of possession under adverse claim; and such clearly appears to be the relation of the parties in this case from the evidence before us. An action ex contractu has sometimes been maintained against a mere trespasser; but there are cases where the avails of the trespass or occupation, as money had and received to the plaintiff’s use, and not the trespass or occupation itself, is the gist of the action. In such cases, a party may waive the tort, and sue in assumpsit for money had and received. Per Lord Mansfield, in London v.

Hooper, Cowp. 419; 2 T. R. 144; 1 S. & M. 31. This is perfectly consistent with the idea of a contract; and in the case last cited, the action is sustained upon the ground, that the defendant had received rents and profits from his possession, and that that was embraced in the count for money had and received in the declaration. The record here shows no such count, nor any proof to support it. The court below, therefore, erred in granting the first and third instructions, at the instance of the plaintiff, and in refusing the second instruction asked by the defendant.

We do not think there was error in granting the plaintiff’s second,'or in refusing the defendant’s sixth instruction. But the court erred in rejecting the record of the lawful detainer, or at least so much of it as showed the manner in which the plaintiff alleged that the defendant held possession of the premises.

That evidence tended to prove that, in July, 184?, the defendant held possession of the land in question, “ unlawfully, and against the plaintiff’s consent,” and this by the affidavit of the plaintiff, thus clearly removing all ground upon which the action of assumpsit as upon an implied contract of possession cotild stand. It was the admission of the plaintiff, in the most solemn form, of the adverse possession of the defendant, and was directly pertinent to the case on trial. The judgment for these errors is reversed, and the case remanded for a new trial.