#### Ackerman vs. Lyman.

*Statutory action for me and occupation, lies upon implied*agreement— *When such,*

1. The statutory action for use and occupation in this state (sec. 17, cli. 91, E. S.) may be maintained upon an *implied*agreement; and such agreement may be implied from defendant’s entering into possession by plaintiff’s permission, or from acts showing his consent, after a tortious entry, to hold under plaintiff; but one who has made a tortious entry cannot be rendered liable as a tenant for the time during which he remained in possession, by merely showing that the plaintiff assented to such continued possession.

2. Where one who has entered upon land without claim of title,. afterward takes an assignment of a mortgage of the land, past due, the value of his *subsequent*use and occupation should be applied to reduce the mortgage debt; but if that debt has been otherwise paid, he is liable for such value in an action by the owner.

*455APPEAL from the Circuit Court for *Fond du Lac*County.

Action for the value of the use and occupation of premises alleged to have been the property of one Holdridge, and affcer-terwards of the plaintiff, and to have been occupied by the defendant *“*according to the permission” of said Holdridge and subsequently of the plaintiff, from October 1st, 1859, to February 1st, 1863. The plaintiff had taken an assignment of Holclridge’s claim for that portion of the time during which the latter owned the premises. The answer, among other things, denies that the defendant occupied the premises “ according to the plaintiff’s permission,” and alleges that he went into possession December 20, 1860, as assignee of an unpaid mortgage on the land, and held and occupied under the mortgage until February, 1863, when plaintiff paid him the amount due on the mortgage, and he delivered up the possession to the plaintiff.

A verdict and judgment were rendered for the plaintiff; and the defendant appealed. The errors relied upon will sufficiently appear in the opinion.

*Priest &*Stow, for appellant,

cited 1 Term, 378, 387 ; Chitty on Con., 107; 13 Johns., 489; 3 S. & R., 590; 6 N. H., 298 ; 6 Ohio, 371; 4 id., 213; 14 Mass., 95; 17 id., 299; 33 Vt., 88 ; 3 Corns., 589; 3 Denio, 452; 1 Hill, 154 ; 15 Barb., 32; 3 id., 83 ; 3 Wend., 219 ; Taylor’s L. & T., §§19-21; 2 Parsons on Con., 27, 28.

*John Ware,*for respondent,

contended that the proof showed that the defendant took possession under Johnson, who was a tenant of Holdridge, which was *prima facie*evidence of an assignment of Johnson’s lease to him. *Gross v.*Upson, 17 Wis., 618, and cases there cited. 2. A tenant cannot set up an adverse outsanding title purchased by him, against the landlord’s claim for rent. *Jachson v. Hinman,*10 Johns., 292 ; *Tondro v. Oushmcm,*5 Wis., 279; *Nellis v. Lathrop,*22 Wend., 121; 2 Corns., 245; *Jachson v. Rowland,*6 Wend., 666. Tenant’s right to attorn to a mortgagee, gives him no right to buy an outstanding mortgage, and then claim under it. *Jones v. Clark,**45620 Johns., 51. 8. The mortgagor is entitled to the possession of tbe premises until foreclosure. R. S., cb. 14Í, sec. 28. 4. The action for use and occupation may be maintained on an implied undertaking, where the permissive holding is established *{Stocked v. Watkins,*2 Gill & J., 326); or it may arise from *waiver of tort,*or from simply letting into possession. *Newport v. Saunders,*3 B. and Ad., 411; Chitty on Con., 371-3.

Downer, J.

The appellant claims that the circuit court erred in instructing the j ury, that if they found that the defendant went into possession of the premises, knowing that they belonged to Holdridge, and setting up no right to them in himself, or in any other person under whom he claimed, adverse to the rights of Holdridge, and remained in possession thereof with the assent of Holdridge or his duly authorized agent, and without setting up any claim adverse to the right of Holdridge to the premises, then the law would imply a promise on the part of the defendant to pay to Holdridge or his assigns, whatever the use and occupation was reasonably worth for the time he so held.

It is maintained that there is no evidence to warrant the instruction, and that if there was it is erroneous. It is not very clear from the evidence whether the defendant entered as a trespasser without color of title, or under Johnson, a tenant of Holdridge, and continued in possession by his permission. We are inclined to the opinion that there was evidence from which the jury might have found that Holdridge permitted the defendant to occupy the premises, and that he remained in possession under that permission until the mortgage was assigned to him. But the instruction is to the effect that if he entered as a trespasser without claim of title, and remained in possession with the assent of Holdridge, the law will imply a promise to pay rent. If this be so, then all that is necessary to convert a trespasser into a tenant is, for the owner of the premises to say to him, “ I assent to your possession,” and the trespasser be*457comes a tenant -without bis own consent, or even against bis will. A tort cannot thus be converted into a contract. At common law, no action of *assumpsit*for rent would lie, except upon an express promise made at tbe time of tbe demise. *Johnson v. May,*3 Lev., 150; *Smith v. Stewart,*6 Johns., 46. Tbe action for use and occupation in tbis state rests on section 17, ch. 91, R. S., wbicb is in substance tbe same as sec. 14, ch. 19, 11 Greo. II. Tbat section required tbat there should be an agreement; but it is well settled tbat tbe agreement may be express or implied. It may be implied from tbe defendant’s entering into possession by tbe permission of tbe plaintiff, or from acts showing tbe assent of tbe defendant, after a tortious entry, to bold under tbe permission of tbe plaintiff. *Henwood v. Cheesman,*3 Serg. & Rawle, 500; *Ryan v. Marsh,*2 Nott & McCord, 156; *Stockett v. Watkins' Adm'rs,*2 Gill & Johns., 326; *Wiggin v. Wiggin,*6 N. H., 298.

In *Henwood v. Cheesman*tbe court below charged tbat if tbe defendant occupied tbe land by tbe consent and permission of tbe plaintiff, tbe jury might presume a promise to pay a reasonable rent; and tbis instruction was held correct. But it is evident from tbe whole case (tbe testimony in wbicb is not fully reported), tbat tbe defendant either entered into possession by tbe permission of tbe plaintiff, or it was a conceded fact tbat after be was in possession be held under bis permission; for tbe comt, in its opinion, say tbat “ if tbe defendant came on as a trespasser, tbe plaintiff cannot recover in an action for use and occupation.” And to tbe same effect are *Stockett v. Watkins' Adm'rs,*and *Ryan v. Marsh,*and other authorities there cited.

In tbis case tbe plaintiff alleges in bis complaint tbat Hold-ridge permitted tbe defendant to have, bold and occupy tbe premises, and *11 that the defendant, according to that permission, held and occupied,"*&c. Tbe defendant, in bis answer, denies tbe permission of Holdridge, and denies tbat be according to tbe permission held, occupied and enjoyed tbe premises. It *458appears to us tbe instruction ignored a material part of tbe issue, to wit, tbat formed by tbe denial of tbe defendant tbat be beld possession according to tbe permission of tbe plaintiff, and was therefore erroneous. A trespasser cannot be converted into a tenant without bis consent.

We see no error to tbe injury of tbe appellant in tbe other instructions. From tbe time of tbe assignment of tbe mortgage to tbe defendant, and bis occupation of tbe premises as mortgagee, tbe rents should have been applied to reduce tbe mortgage debt; but if tbat debt has been fully paid without applying tbe rents, no good reason is shown either by tbe pleadings or evidence why tbe plaintiff should not recover what tbe use of tbe premises. during such occupancy was reasonably worth. It may be tbat before tbe code recovery could be bad in such cases only in equity.

*By the Court.*— The judgment of tbe circuit courtis reversed, and a *venire de novo*awarded.