#### Bancroft and wife *against*Wardwell.

ab act»» for v:od can inly be nvío» airssd where i, e 'etation of iatHijord *¿*ihí¡8¿asComT£ «fm ihpi,?La¿aser from

THIS was an action of *assumpsit,*for use and occupation, which was tried before Mr. Justice *Van*Ness, at the *Oneida*. . . circuit, m *June,*1816. ' *7*

*t*The premises in question, were situate in the town of Rome, in the county of *Oneida,*and were part of certain lands which had been held by one *Hawes,*under a lease for three lives, who died leaving several children, his heirs at law, and a widow, who was now the wife of the plaintiff, whose dower was assigned to her in severalty by the heirs, which the plaintiff had improved and leased, reserving the rents, for several years, until 1812. One *Peck,*a witness on the part of the plaintiffs, testified, that the large lot, of which the premises are a part, was held in different proportions by several tenants, among whom was the defendant, under a lease from *John Lansing,*jun, that the witness, by the defendant’s orders, had taken possession of his part *490of the large 4ot, which lay in *Rome,*and fenced inland cultiva? ted, a certain piece,, called the rye-field, containing IS 'or 2Q acres, which had for several years been uninclosed, and about one'.third • of which had been assigned to Mrs. *Bancroft}*that •the next year the plaintiff, *Bancroft,*called om the witness,, and said that he thought the defendant ought to pay him something for his .-right, in'the lot, or do something about his clajm to it, and wished tp‘ sell it. To- this the witness replied, that- he had no authority from the, defendant to make any bargain for .him y that the Witness, at *Bancroft’s*request, wrote to the defendant, statingc ifi substance,What- *Bancroft*had said, and wishing his directions, to which he shortly after received a letter in reply, directing him to take possession, at all events, of the remainder of the same, including the residue Of the land claimed by'the plairftiffs, and that he, the .defendant, would do what was right about it; that" the Witness, accordingly,, took possession of a piece of land, called the elder lot, which was then unincloséd, and cleared it, and fenced it, with the consent of the plaintiffs, under the above-mentioned arrangement; that the defendant goon after arrived from *Rhode-I stand,*where lie then resided, and on *Bancroft's*proposing to sell his wife’s right, the defend? ant said, that the plaintiffs had nb right to the land claimed by them, an4 ought to pay him for waste committed upon it; that the wkffoss ha4 never heard *Bancroft*make any claim for the. qse and occupation of the preinises,..:but merely wished -to sell his claim in right of his wife’s dower,, and that the defendant had improved the land,, until the time that this suit-was- brought, Another witness for the plaintiffs stated, that he was present at Conversations between *Bancroft*and,the.defendant, in which the former.never pretended that:he had any claim to demand' .rent of the defen4ant, but-bis only object Was that the defendant shóufe pay him something on; a purchase of' his: .claim, and in that way extinguish it, and that. *Bancroft:*said, that he supposed1' that the defendant would,give him something’for his claim, in. consequence of the letter Which he had written to Peck; that’ the defendant replied, that *Bancroft*had Committed great waste upon . the land, and that he had no right to it, and,'therefore, he considered-himself under nq obligation tp.give him any thing for his claim, but .that *Bancroft,*ought to pay him for the waste.'

Upon this, evidence. the judge directed the plaintiffs to be *491nonsuited ; nonsuit. and they now moved the court to set aside the

*Storrs,*for the plaintiffs,

contended, that the statute intended to afford a liberal remedy against tenants, and that wherever a tenancy exists, the action for use and occupation would lie. That, unless there was a contract of sale, the defendant must be considered as a tenant at will. That there being no terms, or price, or quantity of land agreed upon, there could be no contract of sale. That this case was distinguishable from that of *Smith*v. Stewart,* where the defendant entered under colour of a title that could be enforced in a court of equity. The defendant is a tenant at will,† without a reservation of rent. The plaintiffs are not bound to treat him as a trespasser. It is enough that the defendant himself, or by his agent, occupies the land.‡ If the defendant cannot, in this action, dispute the plaintiffs’ title, it must be on the ground of tenancy. "

*Talcot,*contra,

insisted, that the defendant did not, in any manner, enter into possession under the plaintiffs, so as to create the relation of landlord and tenant; and that the case of *Smith*v. *Stewart*was directly in point. In *Kirtland v. Pounsett,**§***the court of common pleas, in *England,*decided, that if a purchaser takes possession under a contract of sale, which, afterwards, on account of some defect in the vendor’s title, is not executed, the vendor cannot recover for the use and occupation for the time the vendee was in possession.

Again; this action should have been by the husband alone. Though the defendant cannot dispute the title of the plaintiff in this action, he may deny that the wife has any interest. The promise, if any, was made to the husband, not to the wife; and without an express promise to her, she cannot be joined.ǁ There was no estate of which she could be endowed.** The husband alone has an action of debt for rent.††

*

*6 Johns. Rep. 46.*

†

**Jackson v. Bradt, 2 Caines, 163.

‡

 Comyn. *on*Con. 511. 1 Esp. Cases, 59. Bl. 323.

§

*2 Taunt. Rep. 145.*

ǁ

 1 Salk. 114 2 Wm Bl. Rep. 1236.

**

*1 Cruise's Dig 151.*

††

*Vin. Ab. Baron, ct Feme. (2) vl.*8. note. *pl.*12.

*Per*Curiam.

This is a motion to set aside a nonsuit granted at the trial. The action is for use and occupation; and the question is, whether the evidence was sufficient to support the action. It is a well settled principle, that this action cannot be sustained, unless the relation of landlord and tenant exists between the .parties. But the facts in this case furnish no *492evidence of any such relatiori. If the defendant could'be eo'nsi¿efe(3 a? holding at all, under,.or by the permission'oft vtbe plaintiffs, it was as a. purchaser, and not as a tenant. Such holdiñg. is riot enough to maintain this action, according to the decision of the court, in the case of *Smith*v. *Stewart,*(6 *Johns,*49.) There , were no facts from which a tenancy could be inferred, and, therefore, .nothing which'-ought to have been submitted to -the jury. The first application made by *Bancroft*to the defendant’s agent,, was to *..sell*his claim to-the land's in. Question, and which then lay . in common,. Neither the letter wrii’ten by the : a gent to' the defendant, nor the answer, intimate any-agreement to take, possession as tenant. But the'defendant .directs-his agent to take possession, at all events,-and be would do. what was right about.it. When he came,up. The possession was afterwards taken, with the cpnserit.'of the plaintiffs, and Under the above ar, rangement. The defendant never had consented, to any arrangement, other than to do what was right about it, and the only proposition made by the plaintiffs was to sell, and it was; impossible, from these facts,- to infer any agreement that could create the relation, of landlord and tenant. The motion to set aside ihV nonsuit, inust, therefore, be denied.,

Motion denied.