§ 1284. The landlord's remedy for rent is, by common law, upon the demise. It is a matter savoring of the realty, for which debt or covenant is the proper remedy; and assumpsit will not lie where rent is reserved by deed, unless there be an express promise to pay the rent after the expiration of the term, upon some new consideration; as where there is a promise to pay the balance due on the settlement of an account, including rent in arrear.1 This rule obtains upon the ground that the action of assumpsit will not lie where there is a remedy of a higher nature.2
§ 1285. But where a demise is not under seal, the statute of 11 Geo. II. ch. 19, § 14, provided, or rather confirmed,3 a remedy for the recovery of rent, by action of assumpsit for use and occupation. So, also, by common law, an action of assumpsit for use and occupation of land, by permission and assent of the plaintiff, lies on an express or implied promise to pay a certain sum, or, in general, to pay to the plaintiff's satisfaction for such use.4 But rent due upon a written essary to support this action where there is a "written contract of demise for a term not exceeding three years; for the tenant "holds," although he does not occupy; and if there be an actual holding, and the power to occupy and enjoy be given by the landlord to the tenant as far as depends on the landlord, the action for use and occupation is maintainable;1 although, in point of fact, the premises be wholly destroyed by fire, so that no actual occupation is possible, and although the lease be of rooms or particular floors in a house, so that no interest in the land can survive to the tenant after the destruction by fire.2 But it is otherwise if there be no written contract of demise, and no actual occupation or enjoyment.3
1 Foster v. Allanson, 2 T. R. 479; Reade v. Johnson, Cro. Eliz. 242; Ib. 859; Codman v. Jenkins, 14 Mass. 95; Comyn, Landlord and Tenant, 435, and cases there cited.
2 Naish v. Tatlock, 2 H. Bl. 323; Codman v. Jenkins, 14 Mass. 95.
3 See Gibson v. Kirk, 1 Q. B. 850; Churchward v. Ford, 2 Hurl. & N. 446; 6 Am. Law Rev. 7.
4 Eppes v. Cole, 4 Hen. & Munf. 161; Sutton v. Mandeville, 1 Munf. 407; Gunn v. Scovil, 4 Day, 229, 234; Osgood v. Dewey, 13 Johns. 240; Stockett v. Watkins, 2 Gill. & Johns. 326. And to prove that the relation of landlord and tenant subsisted between the parties to an action of assumpsit for use and occupation, it is competent for the plaintiffs to introduce a lease between the same parties, executed at a previous period covering the same and other premises, and extending down to the comlease cannot be recovered under a count for use and occupation; and the defendant may prove such written lease under an answer which simply denies all the allegations of the declaration.1 This action must, however, be founded on a promise to pay rent, either express or implied; and if the contract be inconsistent with such a supposition, and at variance with such an intention, the action will not lie.2 Thus, if a purchaser take possession of premises under a contract to purchase, and advance the purchase-money, and the purchase be not completed on account of the inability of the vendor to make a title, the vendor cannot charge the vendee with rent for the time during which he remained in possession upon an implied contract for use and occupation; for a contract cannot arise by implication of law under circumstances the occurrence of which neither of the parties ever contemplated.3 So, also, this action cannot be maintained against a bond fide purchaser for a valuable consideration from the heirs of a disseisor after a descent cast, and without notice of the disseisin.4 So a lessor cannot recover rent upon a complaint for use and occupation where it appears from the evidence that there was a lease of the premises to other parties, and that the defendants were in as assignees of the term.5
§ 1286. An actual personal possession is not, however, necmencement of the time sued for in this action, although such lease had expired, and the rent under it had all been paid. Longfellow v. Longfellow, 54 Me. 240 (1864).
1 Warren v. Ferdinand, 9 Allen, 357 (1864).
2 Boston v. Binney, 11 Pick. 1; Featherstonhaugh v. Bradshaw, 1 Wend. 134; Smith v. Stewart, 6 Johns. 46; Howe v. Russell, 41 Me. 446. And if the parties to a parol lease have provided a particular mode of paying the rent, the law will not imply, from the use and occupation of the premises, a promise to pay in a different manner. King v. Woodruff, 23 Conn. 56 (1854).
3 Kirtland v. Pounsett, 2 Taunt. 147. See, also, Keating v. Bulkeley, 2 Stark. 419; Vandenheuvel v. Storrs, 3 Conn. 203; Hough v. Birge, 11 Vt. 190; Bancroft v. Wardwell, 13 Johns. 489; Smith v. Stewart, 6 Id. 49; Dennett v. Penobscot Fair Ground Co., 57 Me. 425 (1870). But see Gould v. Thompson, 4 Met. 224. See, also, Woodbury v. Woodbury, 47 N. H. 11.
4 Wharton v. Fitzgerald, 3 Dall. 503; Emerson v. Thompson, 2 Pick. 473. And see Smith v. Eldridge, 15 C. B. 26; 236 Eng. Law & Eq. 285.
5 Bedford v. Terhune, 30 N. Y. 453 (1864).
§ 1287. Use and occupation lie for the whole term where the tenant quits the premises, without properly determining his term, as by giving notice to quit, or without the assent of the lessor to his quitting the premises.4 But if the landlord accept the premises, or let them to another person, he cannot recover beyond the time during which they were actually occupied.5 So, if the rent be entire, and the landlord evict the tenant during his term out of part of the premises, he may abandon the residue, and is not chargeable for the occupation of any part.6 But if he still continue to occupy the residue, he is chargeable upon a quantum meruit.7 So, also, if a tenant at will or sufferance renounce the title of his landlord, assumpsit cannot be maintained for use and occupation subsequent to such renunciation.1 So, also, if a lease for a certain term contain no exception of losses by fire, and the premises be burned down, the tenant is chargeable, in an action for use and occupation for rent during the whole term.2
1 Izon v. Gorton, 5 Bing. N. C. 507; Smith v. Twoart, 3 Scott, N. R. 172; Surplice v. Farnsworth, 7 M. & G. 584, 585.
2 Ibid. See Fowler v. Bott, 6 Mass. 63; Stockwell v. Hunter, 11 Met. 448.
3 Inman v. Stamp, 1 Stark. 12; Edge v. Strafford, 1 Cromp. & J. 391.
4 Matthews v. Sawell, 8 Taunt. 270; Redpath v. Roberts, 3 Esp. 225; Mills v. Bottomly, Selw. N. P. 1829; Phipps v. Sculthorpe, 1 B. & Ald. 50.
5 Hall v. Burgess, 5 B. & C. 332; Walls v. Atcheson, 3 Bing. 462; Whitehead v. Clifford, 5 Taunt. 518; Birch v. Wright, 1 T. R. 378; Marseilles v. Kerr, 6 Whart. 501; Beach v. Gray, 2 Denio, 84.
6 Smith v. Raleigh, 3 Camp. 513; Pope v. Biggs, 9 B. & C. 245.
7 Stokes v. Cooper, 3 Camp. 514, note; Tomlinson v. Day, 2 B. & B. 680.
§ 1288. Where a tenant occupies premises on an agreement to pay rent therefor, but neither the time of the occupation nor the amount of the rent is agreed for, and the landlord gives him notice to quit immediately, and he assents thereto, and acts accordingly, the landlord may immediately maintain an action for use and occupation, without first demanding payment of the rent.3
1 Boston v. Binney, 11 Pick. 1.
2 Baker v. Holtzapffel, 4 Taunt. 45; Izon v. Gorton, 7 Scott, 537; s. c. 5 Bing. N. C. 501; Ibbs v. Richardson, 1 P. & Dav. 618. But see Edwards v. Etherington, Ryan & Mood. 268; 8. c. 7 Dowl. & Ryl. 117; Fowler v. Bott, 6 Mass. 63; Stockwell v. Hunter, 11 Met. 448.
3 Spaulding v. M'Osker, 7 Met. 8.