#### Stephen W. Little *et al.*Administrators, *versus*Silas Pearson.

\ person occupying land under a contract for the purchase ot it, is not liable to pay rent on an implied contract for the use and occupation, if the owner of the land fails to execute a conveyance of it to him.

*V*paid L 100 dollars as the price of a piece of land, and L gave P a promissory note for the money payable to P or order, under which the following memorandum signed by L was written. “ N. B. This note is to be given up when I give him a deed of the land, which I have engaged to give him,” See. P occupied the land nine years till the time of L’s death, but L made no conveyance of the land, and P retained the note. *L*died insolvent, and his administrators brought assumpsit against P for the use and occupation of the land during the nine years. *Held,*that the action would not lie.

*It seemst*that the note with the memorandum is a sufficient agreement in writing for a court of equity to compel a conveyance of the land.

This was an action of *assumpsit*for the use and occupation of a piece of salt marsh belonging to David Little, the plaintiff’s intestate, from 1816 to the time of the intestate’s death in 1825. Plea, the general issue.

At the trial in the Court of Common Pleas, before *Strong*J., the defendant admitted that he had occupied the premises during the term. It appeared that on September 18, 1817, the defendant paid 100 dollars, and at the same time took from Little the following note and memorandum written at the bottom of it: — “ Newburyport, Sept. 18, 1817. For value received I promise to pay Mr. Silas Pearson or order one hundred dollars on demand with interest. David Little. N. B. This note is to he given up. when I give him a deed of the land, which I have engaged to give him. D. Little.”

Little never paid the note, nor gave a deed of the land, and the note remained in Pearson’s hands, and was produced by h m at the trial. Little’s estate was insolvent.

The counsel for the defendant contended, that the note and memorandum showed that the 100 dollars were paid by Pearson, and received by Little, as the price of the land. He then contended, that as Little had received the price of the land, and had the use or interest of the 100 dollars while Pearson occupied the marsh, the plaintiffs were not entitled to recover.

The Court instructed the jury, that the note and memorandum *308were *prim t facie*evidence that the 100 dollars were pain to Little by Pearson, as the agreed price of the land; hut that Pearson was precluded from considering the 100 dollars as payment for the land, because he took for the same a *negotiable*promissory note ; and that the plaintiffs were entitled to recover what the use of the marsh was reasonably worth. The jury returned a verdict for the plaintiffs.

Nov. *7th.*

To this opinion and direction of the Court the defendant excepted.

Moseley, in support of the exceptions,

said it would be great injustice if the defendant should lose his money and be obliged also to pay rent for the land. He cited *Sturdy*v. *Arnaud, 3*T. R. 599 ; *Farley*v. Thompson, 15 Mass. R. 18. The case of *Kirtland*v. Pounsett, 2 Taunt. 145, that a person occupying land under a contract for the purchase of it, which fails on account of a defect in the vendor’s title, is not liable for rent on an implied contract for use and occupation, is perfectly analogous to this. The position taken by the court below, that this action was maintainable, because the note was negotiable, is unsound; since the note is barred by the statute of limitations, and the estate of Little is insolvent.

*Marston, contra.*

The note was negotiable, notwithstanding the memorandum at the bottom ; Pearson was not bound to give it up on delivery or a deed, as he did not sign it; he might at any time have cut off the memorandum and passed away the note.

The opinion of the Court was afterward drawn up by

Parker C. J.

This case, if it must be determined for the plaintiff, would produce great injustice. There was certainly no expectation between the intestate and the defendant, that the defendant should pay rent for the land which he had agreed to purchase and had paid for. Indeed we do not see why the note, with the memorandum, is not a sufficient agreement whereby in equity to compel a conveyance. The interest of the money received by the intestate was just equivalent to the sum charged for rent; the intestate therefore received his rent in his lifetime. It is true he gave his promissory note for the money he received, payable on demand and on interest, but it is manifest this was to be a mere memorandum between the par*309ties. On the note itself it appears that it might be discharged at any time, by the delivery of the deed which had been agreed for ; and though the note is negotiable in form, its negotiahility to the prejudice of the intestate was destroyed by the written memorandum on it, which, though signed by the intestate alone, was binding on the defendant, he having received it n that form, and every assignee would have notice of the sub-listing right to defeat the note.

Under these circumstances there is no implied promise to pay rent, arising from the use and occupation, and the cases in 3 T. R. 599, and 15 Mass. R. 18, warrant this conclusion.1 We think therefore the verdict should be set aside, and a new trial granted at the bar of this Court.

1

 Where the defendant entered under a contract for the purchase of land, and occupied it for several years and then abandoned it to the plaintiff without performing his contract, it was held that assumpsit for use and occupation could not be maintained, though the defendant was the sole cause why the contract was not carried into effect. *Vanderheuvel*v. *Storrs,*3 Connect. R. 303. See Chitty on Contracts, (4th Am. ed.) 295, note 1, 295 *a.*note 1.