A purchaser of land under an oral contract, who is given possession by his vendor and subsequently defaults, is liable for the value of whatever use and occupation of the premises he may have enjoyed.3 The act of the vendor in giving the purchaser possession without a conveyance of title may not be, strictly speaking, a part performance of the contract, but it is unquestionably an act in reliance upon the contract, and the benefit resulting to the purchaser raises an obligation to make restitution. A lessee who occupies premises under an oral lease within the statute is similarly liable.4 In the latter case, an equitable title in land were allowed to recover the land upon proof that the transferee had failed to perform his oral agreement to obtain the conveyance of other lands to the transferor.
1 In Keath v. Patton, 1829, 2 Stew. (Ala.) 38, and Luey v. Bundy, 1838, 9 N. H. 298; 32 Am. Dec. 359, the plaintiff was allowed to recover in trover for the conversion of personal property delivered to the defendant in performance of an oral contract within the Statute of Frauds.
2 Dix v. Marcy, 1875, 116 Mass. 416, and Day v. New York, etc., R. Co., 1873, 51 N. Y. 583, are typical. The former was a case of a conveyance of land, and the court said (p. 418): "A person who has received a benefit under such an agreement, and then repudiates it, is held to pay for that which he has received." In the latter, likewise a case of the conveyance of land, the court said (p. 590): "A party who has received anything under such an agreement, and then has refused to perform it, ought in justice to pay for what he has received, and hence the law for the purpose of doing justice to the other party will imply an assumpsit." Jarboe v. Severin, 1882, 85 Ind. 496, is an exception to the rule, the court saying that the implied promise of the party in default under the contract is that he "will return whatever he has received thereunder or its value."
3 Davidson v. Ernest, 1845, 7 Ala. 817; Doe v. Cockron, 1835, 1 Scam. (2 111.) 209; Patterson v. Stoddard, 1860, 47 Me. 355; 74 Am. Dec. 490; Dwight v. Cutler, 1855, 3 Mich. 566; 64 Am. Dec. 105.
4 Smith v. Pritchett, 1893, 98 Ala. 649; 13 So. 569; King p. Woodruff, 1854, 23 Conn. 56; 60 Am. Dec. 625; Donohue v. Chicago Bank Note Co., 1890, 37 111. App. 552; Talamo v. Spitzmiller, 1890, 120 N. Y. 37; 23 N. E. 980; 8 L. R. A. 221; 17 Am. St. Rep. 607.
however, the obligation is not strictly quasi contractual, but is incidental to the relation of landlord and tenant created by the lessee's occupancy of the land in subordination to the lessor's title and with the lessor's consent.1 Although the lease is said to be void or unenforceable, the terms of the lessee's obligation for use and occupation, including the amount payable and the time for payment, are governed exclusively by its provisions,2 and furthermore, the lessee is ordinarily liable for an entire rental period whether or not he continues throughout the period actually to occupy the premises.3 In substance and effect this amounts to a partial enforcement of the oral lease.4