This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If the tort complained of consisted in adverse possession of real property, or any form of possession thereof without the consent of the true owner, the Common Law did not allow such tort to be waived and an action in assumpsit for use and occupation to be brought. Assumpsit could not be made the means of trying the title to land.1 Accordingly, an action in assumpsit
18 Chattanooga, etc., Ry. v. Town Co., 89 Ga. 732; 16 S. E. 308.
1 Roberts v. Evans, 43 Cal. 380; Toledo, etc., Ry. v. Chew, 67 111. 378; Morford v. White, 53 Ind. 547; Jones v. Gregg, 17 Ind. 84; Ever-sole v. Moore, 3 Bush. (Ky.) 49; Gordon v. Bruner, 49 Mo. 570; Moore v. Richardson, 68 N. J. L. 305; 53 Atl. 1032; Galvin v. Mill Co, 14 Mont. 508; 37 Pac. 366;
Terry v. Munger, 121 N. Y. 161; 18 Am. St. Rep. 803; 8 L. R. A. 216; 24 N. E. 272; Barker v. Cory, 15 Ohio 9; McCombs v. Guild, 9 Lea (Tenn.) 81; Kirkman v. Philips, 7 Heisk. (Tenn.) 222; Maloney v. Barr, 27 W. Va. 381; Walker v. Duncan, 68 Wis. 624; 32 N. W. 689.
2 Stebbins v. Waterhouse, 58 Conn. 370; 20 Atl. 480.
1Burdin v. Ordway, 88 Me. 375; could not be brought unless there was either an express or an implied contract between the owner and the possessor creating the relation of landlord and tenant.2 Where decedent's widow occupies the homestead after the period fixed by statute for her occupancy had expired, the heir cannot recover from her in an action for the rent thereof.3 One who holds wrongful possession, adverse to that of the real owner, cannot be held liable in an action for use and occupation.4 Where the person in wrongful adverse possession collects rents of the property, it has been held that he is not liable to the real owner for money had and received. Thus, one in possession under an invalid tax deed has been held not to be liable in this form of action.5 A railroad company took some of A's land for a right of way. Subsequently, A sold his property to B. It was held that B could not maintain an action against the railroad company for use and occupation.6 Neither could B in this case sue as A's assignee in trespass, since such a claim could not be assigned. A vendee in possession under a contract of sale is not, on breach of such contract, liable for use and occupation7 even if the contract is subsequently rescinded.8 If a person in possession, who has made a contract to purchase the land, did not enter into possession under such contract of purchase, this principle does not apply. Thus A, the owner and mortgagor of a piece of land, and B, A's son, were living together on the mortgaged premises. C, the owner of the mortgage, agreed with B that C should foreclose the mortgage, buy the property in, and convey it to B. C performed the contract as far as foreclosure and buying in were concerned. B remained in possession, but did not perform the contract on his part and it was subsequently rescinded. It was held that B was liable to C in an action for use and occupation.9 So if the person in possession under a contract of sale has agreed to pay rent in case of rescission, this principle has no application. A transferred property to B under an agreement made between their respective husbands, by which A was to take the property back or obtain a purchaser therefor if B was dissatisfied with the purchase; and in such case B was to pay for the use and occupation of the land. B, after accepting the deed, became dissatisfied, and reconveyed the property to A. It was held that B could not take advantage of the contract made on her behalf by her husband for reconveyance, and avoid liability for use and occupation.10 If the vendor under a contract of sale retains possession, the vendee cannot recover from him in an action for use and occupation.11 By statute in some jurisdictions an action for use and occupation may be brought where the premises are wrongfully occupied, even though there is no agreement, express or implied, for the payment of rent.12 Under the code of civil procedure, the court sometimes does not attempt to say whether the action in which relief is given would have been at Common Law an action for rent or for use and occupation.13 Where possession is taken under a contract other than one for the sale of such realty, an action for use and occupation will lie.14 A mortgagee, who purchases at foreclosure sale, and enters into rightful possession, and who upon redemption by the mortgagor within a year from the date of such sale, is liable for rents during the period of his occupation, is liable to the mortgagee for such rents collected in an action for money had and received.15 Thus where a railroad construction company took possession of the working plant of certain contractors, claiming the right so to do under the contract on the ground of contractor's default, and asserting such right by means of an injunction, it was held that after it was adjudged that the construction company did not possess such right, it was liable to the contractor for a reasonable compensation for the use of such plant.16
34 Atl. 175; Boston v. Binney, 11 Pick. (Mass.) 1; 22 Am. Dec. 353.
2 Grady v. Ibach, 94 Ala. 152; 10 So. 287; O'Conner v. Corbitt, 3 Cal. 370; Atlanta, etc., Ry. v. McHan, 110 Ga. 543; 35 S. E. 634; Waller v. Morgan, 18 B. Mon. (Ky.) 136; Emery v. Emery, 87 Me. 281; 32 Atl. 900; Janouch v. Pence (Neb.), 93 N. W. 217; Phoenix Ins. Co. v. Hoyt (Neb.), 91 N. W. 186; Coll-yer v. Collyer, 113 N. Y. 442; 21 N. E. 114; Eaulcon v. Johnston, 102 N. C. 264; 11 Am. St. Rep. 737; 9 S. E. 394; Cincinnati v. Walls, 1 O. S. 222; Richey v. Hinde, 6 Ohio 371; Butler v. Cowles, 4 Ohio 205; 19 Am. Dec. 612; Blake v. Preston, 67 Vt. 613; 32 Atl. 491; Ackerman v. Lyman, 20 Wis. 454.
3 Emery v. Emery, 87 Me. 281; 32 Atl. 900.
4 Atlanta, etc., Ry. v. McHan, 110 Ga. 543; 35 S. E. 634;
Williams v. Hollis, 19 Ga. 313; Richardson v. Richardson, 72 Me. 403; Bigelow v. Jones, 10 Pick. (Mass.) 161; Henderson v. Detroit, 61 Mich. 378; 28 N. W. 133; Hart-man v. Weiland, 36 Minn. 223; 30 N. W. 815; Barron v. Marsh, 63 N. H. 107; Stockwell v. Phelps, 34 N. Y. 363; 90 Am. Dec. 710; Faulcon v. Johnston, 102 N. C. 264; 11 Am. St. Rep. 737; 9 S. E. 394; Watson v. Brainard, 33 Vt. 88. "The disseizor is a trespasser and cannot be treated as a tenant. The tort cannot be waived for the purpose of trying the title to lands in an action of assumpsit." Richardson v. Richardson, 72 Me. 403, 408; quoted in Phoenix Ins. Co. v. Hoyt (Neb.), 91 N. W. 186.
5 Phoenix Ins. Co. v. Hoyt (Neb.), 91 N. W. 186.
6 Allen v. R. R., 107 Ga. 838; 33 S. E. 696.
7 Nance v. Alexander, 49 Ind. 516; Jones v. Tipton, 2 Dana (Ky.) 295; Bishop v. Clark, 82 Me. 532; 20 Atl. 88; Little v. Pearson, 7 Pick. (Mass.) 301; 19 Am. Dec. 289; Hough v. Birge, 11 Vt. 190; 34 Am. Dec. 682.
8Belger v. Sanchez, 137 Cal. 614; 70 Pac. 738.
9 Lynch v. Pearson, 125 Cal. 21; 57 Pac. 676.
10 Van Brunt v. Calder, 167 N. Y. 458; 60 N. E. 755.
11 Greenup v. Vernor, 16 111. 26.
12 Parkinson v. Shew, 12 S. D. 171; 80 N. W. 189.