The action of assumpsit for the use and occupation of lands and
houses, existed in Virginia anterior to the cession of the District
of Columbia to the United States.
But this action is founded upon contract, either express or
implied, and will not lie where the possession has been acquired
and maintained under a different or adverse title or where it was
tortious and makes the holder a trespasser.
The facts in the case, and bills of exceptions, are stated in
the opinion of the Court, to which the reader is referred.
Page 42 U. S. 154
MR. JUSTICE DANIEL delivered the opinion of the Court.
The questions for consideration here, arise upon the following
statement. The plaintiff in error instituted in the Circuit Court
for the District of Columbia, an action of assumpsit against the
defendant for the use and occupation of a house in the Town of
Alexandria. The declaration contains two counts, the first
declaring upon an express agreement between the parties for the
occupation and rent, and the second counting upon an occupation by
the defendant by the permission of the plaintiff, and upon a
promise in consideration thereof. The account filed with the
declaration claims an annual rent of $175, from 1 January, 1826, to
1 January, 1839, inclusive, with interest after the expiration of
each year. Upon the above declaration, there was a judgment by
default, and a jury being empanelled upon a writ of inquiry
assessed damages against the defendant to the
Page 42 U. S. 155
full amount of the plaintiff's demand for rent and interest.
This verdict the court on motion of the defendant set aside,
annexing to its order the condition that the defendant should not
plead the statute of limitations, and issue being joined between
the parties on the plea of nonassumpsit, a jury sworn to try that
issue on 10 May, 1841, returned a verdict for the defendant; and
thereupon the court gave judgment against the plaintiff with
costs.
At the trial instructions to the jury were prayed on behalf both
of plaintiff and defendant and exceptions taken to the rulings of
the court in reference to those instructions.
The first bill of exceptions states that the defendant, having
offered to prove by competent and credible witnesses that during
the entire period of his occupation of the premises, he had
remaining thereon property sufficient to answer the rent, had the
plaintiff chosen to distrain or sue for the same; he thereupon
prayed the court to instruct the jury, should they believe from the
evidence, that there had always been upon the premises, while
occupied by the defendant, property and effects of his sufficient
to have satisfied the rent, then that the plaintiff failing or
neglecting to sue or distrain for those rents, was not entitled in
this action to recover interest on the rent in arrear whatever it
might be, from a period earlier than the date of the writ sued out
in this cause. But the court refused the instructions so prayed
for, to which refusal the defendant excepted.
In the second bill of exceptions it is stated that the
defendant, by cross-examination of Isaac Robbins, the plaintiff's
witness, proved that in the spring of 1820, defendant entered the
premises as tenant, from year to year, under a parol demise from
said Robbins as trustee of John Swayne, an insolvent debtor, and at
the annual rent of $175, and continued to occupy the premises under
said demise, paying the rent as it became due to Robbins, as
trustee of Swayne, till the spring of 1824. That Robbins, in
character of trustee of Swayne, paid a portion of the rents
collected of the defendant to A. C. Cazenove, and a part of them to
the plaintiff, but without the knowledge of the defendant; that
since the spring of 1824, the defendant had paid no rent to
Robbins, assigning as a reason for refusing to pay, that the
collector of the port of Alexandria had forbidden such payment;
that the
Page 42 U. S. 156
defendant was still the occupant of the premises of which the
plaintiff in this cause had never, to his knowledge, taken actual
possession; that Robbins resided in Alexandria and had so resided
for the last thirty-seven years; that the defendant also read in
evidence a deed from Jonathan Scholfield and wife, to A. C.
Cazenove, bearing date on 13 June, 1814, and duly recorded in
Alexandria county, which deed (made a part of the exceptions)
conveyed the premises occupied by the defendant. That upon these
proofs the defendant prayed the court to instruct the jury, should
they believe that the defendant originally entered, and used and
occupied the premises by a parol demise thereof from Robbins, as
trustee of Swayne, in 1820, and, as tenant of Robbins, paid him the
rent until 1824, after which period Robbins ceased to collect the
rent for the reason above stated, although the defendant continued
to use and occupy the premises from 1824, and still occupied them;
and that the defendant did not hold and occupy the premises either
under a written or parol demise from the plaintiff prior or
subsequently to his holding under Robbins, or prior to the
institution of this suit, but that the defendant held and occupied
the premises exclusively under the original parol demise from
Robbins as trustee as aforesaid, and that the defendant had no
notice of any title in the plaintiff to the premises beyond what
might be presumed from the fact then shown in evidence, that a deed
had been made for the premises from Robert I. Taylor to the
plaintiff and had been admitted to record, that then the jury must
find for the defendant, which instruction the court accordingly
gave, and the plaintiff excepted.
By the third bill of exceptions it is recited in substance that
the plaintiff having offered in evidence a deed to him for the
premises, dated March the 10, 1817, from Robert I. Taylor, trustee
in a deed from Jonathan Scholfield and wife, conveying the same
property to said Taylor on 26 June, 1814 (both which deeds are
parts of this exception), and having farther proved by Isaac
Robbins that from the year 1820 to the year 1824, the defendant
used and occupied the premises in the declaration mentioned under a
verbal renting from Robbins, claiming as trustee of Swayne under
the insolvent law, and that said renting by Robbins was without the
knowledge or consent of the plaintiff
Page 42 U. S. 157
(no title having been shown by the defendant in Swayne or in
Robbins claiming as his trustee under the insolvent law), and that
Robbins collected the rent of the premises from 1820 to 1824
inclusive, claiming as lessor of the defendant, and as trustee of
Swayne; that he had paid over a portion of the rent thus collected
to A. C. Cazenove, and a portion of it to the plaintiff, who was
the owner of the fee simple under the deed from Taylor, of March
10, 1817; the witness not knowing whether the defendant knew of the
disposition so made of the rent collected of him, and that he,
Robbins, had not claimed rent for the premises from the defendant
since April, 1824, having been informed that defendant had been
forbidden by the collector of the customs of the port of
Alexandria, to pay rent to anyone, other than the United States,
and not having shown that the defendant had, at any time, paid rent
either to the collector or the United States.
Whereupon the plaintiff prayed the court to instruct the jury,
should they believe the evidence aforesaid, that then the plaintiff
had made out such a case as entitled him to recover on the second
count, for the use and occupation of the premises, for such time as
the plaintiff should prove that the defendant had used and occupied
the same, after 15 April, 1824, by permission of the plaintiff.
This instruction the court also refused to give, being of opinion
that from the evidence so stated, it was not competent for the jury
to infer that such occupation by the defendant was by the
permission of the plaintiff, to which opinion and refusal the
plaintiff excepted.
Fourth bill of exceptions. -- The plaintiff offered to prove
that the claim of the plaintiff to the premises for the rent of
which this suit was instituted, was a subject of general notoriety
in the neighborhood about the year 1820 and since, which being
objected, the counsel for the plaintiff insisted he had a right to
ask the question objected to, it being introductory to another
question designed to bring home to the defendant knowledge of the
fact, that the plaintiff claimed the premises used and occupied by
the defendant during the time he so used and occupied them. The
court refused to permit the question, to which refusal the
plaintiff excepted.
By the fifth and last bill of exceptions it appears that the
plaintiff moved the following instructions. That if the jury should
believe
Page 42 U. S. 158
from the evidence stated in the preceding bills of exception in
this cause, that there was a deed from Jonathan Scholfield and wife
(said Scholfield being admitted to have been at the time seized of
a legal estate in fee of the premises) to Robert I. Taylor, which
deed conveyed the fee in the premises, for the use and occupation
whereof this suit was brought, and if the jury should further
believe that Taylor by a deed, subsequent thereto, and set out in
the plaintiff's second bill of exceptions, conveyed the said
premises to the plaintiff and his heirs, then, by the legal
operation of the deed from Taylor to the plaintiff, there was such
a possession transferred to the use thereby limited and conveyed,
as dispensed with proof on the part of the plaintiff, that he had
actual entry on, and possession of, the premises, and that the said
deed gave to the plaintiff such a legal title thereto, and
possession thereof, as could not be divested by a leasing of said
premises to the defendant by Isaac Robbins, a stranger, so as to
deprive the plaintiff of his remedy against the defendant, tenant
of the premises, occupying and using them, though originally leased
to him by said Robbins without the plaintiff's consent, which
instruction the court refused to give, and the plaintiff
excepted.
Although it has been deemed necessary to an accurate description
and correct understanding of the points in the case, to state the
several bills of exception in the record, yet it is obvious that
the four bills sealed at the instance of the plaintiff, and making
the second, third, fourth, and fifth in the order of the
proceedings, may be embraced within the same view, as they all
relate to the establishment of one and the same conclusion,
viz., the necessity of establishing an agreement either
express or implied by law, for the payment of rent by the defendant
to the plaintiff.
In the argument of this cause, the counsel for the plaintiff has
supposed himself called on to anticipate an objection to the remedy
by action of assumpsit, for use and occupation of lands and houses,
as not having existed in Virginia anterior to the cession of the
District of Columbia to the federal government. Such an objection
is regarded without just foundation, this remedy having been
declared by the supreme court of Virginia to be always a part of
the jurisprudence of that state, and having been likewise
recognized in her legislation, not as a remedy created by statute,
but as one enlarged and favored, by making it a transitory
instead
Page 42 U. S. 159
of a local action.
Vid. Sutton v. Mandeville, 1 Munf.
407;
Eppes v. Cole, 4 Hen. & Munf. 161; Sessions Acts,
February, 1816, c. 15, s. 6; Tate's Dig. 465, s. 28.
But whenever the action of assumpsit for use and occupation has
been allowed, it has been founded and would seem necessarily to be
founded upon contract either express or implied. The very term
assumpsit presupposes a contract. Whatever, then, excludes all idea
of a contract, excludes, at the same time, a remedy which can
spring from contract only, which affirms it, and seeks its
enforcement. To maintain the action for use and occupation,
therefore, there must be established the relation of landlord and
tenant, a holding by the defendant under a knowledge of the
plaintiff's title or claim, and under circumstances which amount to
an acknowledgment of, or acquiescence in, such title or claim, and
an agreement or permission on the part of the plaintiff. The action
will not lie where the possession has been acquired and maintained
under a different or adverse title, or where it was tortious and
makes the holder a trespasser.
In
Birch v. Wright, 1 T.R. 387, Buller, Justice,
declares
"That the action for use and occupation is founded in contract,
and unless this be a contract express or implied, the action could
not be maintained, as was held by Lord Mansfield in the case cited
at the bar, of
Carmur v. Mercer, which was tried about two
years ago."
The same principle is ruled in
Smith v. Stewart, 6
Johns. 46. In the case of
Henwood v. Cheeseman, 3 Serg.
& Rawle 500, it is said by the Supreme Court of Pennsylvania,
"If the defendant occupied land by consent and permission of the
plaintiff, the jury may presume a promise to pay a reasonable
rent;" again, "the action for use and occupation is founded on
privity of contract, not on privity of estate." In 2 Nott &
McCord's 156, in the case of
Ryan v. Marsh, the law is
thus laid down:
"It was argued that a contract might be implied, and certainly
as long as the character of the act done by the defendant was
doubtful, a contract might be implied; but when it is admitted that
the possession was tortious, every characteristic of contract was
excluded. No action for use and occupation will lie, when
possession has been adverse and tortious, for such excludes the
idea of a contract, which, in all cases of this action, must be
express or implied. "
Page 42 U. S. 160
Authorities upon this point might doubtless be multiplied. We
will add two others to those already cited,
viz., the
cases of
Stockett v. Watkins' Administrators, 2 Harr.
& Johns. 326; the opinion of the court on 338, 339; and of
Stoddert v. Newman, 7 Harr. & Johns. 251. The
principles ruled in the authorities above referred to, appear to be
strictly applicable to the case under consideration, and decisive
of its fate. Upon an examination of the testimony, introduced by
the plaintiffs, as set forth in his four bills of exception, it
cannot fail to be perceived, that it imports throughout no proof of
a contract between the plaintiff and defendant, of a holding by the
latter under the former, of any acquiescence in, or knowledge of
title in the plaintiff or of permission by him for the occupation
of the defendant. So far from establishing these requisites for
sustaining the plaintiff's demand, it excludes each and all of
them. This evidence proves beyond dispute, a possession and holding
by the defendant under an agreement with Robbins, as trustee of
Swayne, an insolvent debtor; payment of rent to this trustee in
pursuance of such agreement, until a claim was interposed on behalf
of the United States, as creditors of the insolvent debtor; it
further proves a failure or forbearance by the plaintiff to assert
any interest or right to the subject, anterior to the year 1839,
about the time of the institution of the plaintiff's action, and so
far as a negative is capable of proof, a total ignorance on the
part of the defendant of any right of the plaintiff, either to the
rents or to the subject from which they were to issue. Upon the
above view of the evidence as disclosed in the second, third,
fourth, and fifth bills of exceptions, we hold the opinion of the
circuit court to be correct; it is therefore
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Alexandria, and was
argued by counsel. On consideration whereof, it is now here ordered
and adjudged by this Court, that the judgment of the said supreme
court in this cause be and the same is hereby affirmed with
costs.