The Chancellor.
The defendant was in possession of the premises under the plaintiff, in such manner as to make him a tenant at will, for the purpose of sustaining an action [534]*534on the case in the nature of an action of waste. He was not a tenant for the purpose of sustaining an action for use and occupation, at least such is the weight of authority, although even on this point there is a serious conflict of authority, but the decision of the Supreme Court in the case of Brewer v. Conover, 3 Harr. 215, must place that question at rest in this state.
The dictum of Justice Nevius in that case, that the relation of landlord and tenant does not exist in case of occupation under contract of sale, cites as authority, and is based upon the case of Smith v. Stewart, 6 Johns. 46.
In that case, which was an action for use and occupation against a purchaser who had occupied under a contract for sale not carried out, the court remark: “ The better opinion is that he never was strictly a tenant, and never entitled to notice to quit, nor liable to distress, nor to an action of assumpsit for rent. This opinion is not inconsistent with the idea that for certain purposes he may be considered a tenant or in the situation of a tenant, even if it is not viewed as countenancing that doctrine. He may not be a tenant for the three purposes named, and yet for the purpose of. being prohibited when called to surrender, from disputing the title of the person from whom he derived possession, and for being liable for unauthorized spoliation when thus lawfully in possession, he may well be considered as a tenant.
In Suffern v. Townsend, 9 Johns. R. 35, it was said that a parol contract to convey is not a license to enter, and that if a license had been shown, the defendant could not have been in possession in any higher character than as tenant-at-will.
In the case of Jackson v. Miller, 7 Cow. 747, the Supreme Court of New York, in a well considered opinion delivered by Chief Justice Savage, regard a person in possession under a contract to purchase not carried out as a tenant-at-will, but as not entitled to notice to quit, which was the question in that case, and say, “ the general rule here is, that tenancies-at-will are to be considered as tenancies from year to year, merely for the sake of a notice to quit; but this [535]*535seems lo be subject to the exception of a tenancy-at-will created by an entry under a contract to purchase. It seems reasonable that it should be given in all cases where the tenant occupies, with the permission of the landlord, for an indefinite period. But the case of a contract to sell has been uniformly considered an exception.” The judgment of the court is not put upon the ground that there was no tenancy, and, therefore, no notice needed, but on the ground that this case was an exception to the rule requiring notice to a tenant.
In the case of Howard v. Shaw, 8 M. & W. 118, Barons Parke and Alderson both expressly declare that a purchaser in possession, under a contract to sell, was a tenant-at-will, but was entitled to occupy the premises rent free, and, therefore, no action for use and occupation could be brought against him for that time, but only from the time when the contract was at an end. C. B. Abinger differed, and held that, until the contract was at an end, he could not be considered a tenant. But this latter opinion should, perhaps, be taken as applying only to the purpose then under consideration-— his liability as a tenant for use and occupation.
The Supreme Court of Massachusetts, in the ease of Gould v. Thompson, 6 Metc. 224, held that a purchaser in possession under a contract of sale not fulfilled, is a tenant of the vendor. In that case, it had been in a previous suit settled that the defendant was not, bound to fulfill his contract, because the buildings on the premises had been destroyed by fire, upon which he had vacated the premises, and given notice that he would not accept the title. Yet the court held that until then he was tenant, and liable as such for use and occupation. The last part of the decision may be founded on some local or statute law, and is not law in this state.
Upon these authorities and upon principles applicable to the case, I have no difficulty in holding that a purchaser in possession of lands, under a contract to purchase, whether written or verbal, is a tenant-at-will for the purpose of sustaining an action on the case in the nature of waste, for de[536]*536struction committed while in such possession. It would be a great defect if no remedy at law was provided for such destruction of buildings, which might be the greater value of the property, where the contract was not fulfilled because not in writing, or because of some neglect of the vendor to perform some stipulation in exact compliance with the terms of the contract. That there may be a remedy in equity is not sufficient; the law should provide a direct remedy for such a wrong; and the remedy in equity depends upon many circumstances that may render it entirely inefficient. And for this purpose any entering upon and holding premises by permission of the owner, and subservient to his title, should be held to constitute a tenancy sufficient to maintain this action.
That tenants-at-will were liable at common law, and independent of this statute, for voluntary waste like this, is conclusively shown by the cases cited in the opinion of the Supreme Court, by Justice Depue, in the case of Moore v. Townshend, decided at February Term, 1869,
These questions, although not referred to in the ojfinion in the Supreme Court, were involved in the first part of the charge excepted to, and were discussed upon the argument before us.
The defence relied upon is the license; and the position in the charge insisted on as error was fatal to that defence. The charge was, “that if the plaintiff gave consent, upon the condition that the defendant should take the property under the agreement, the plaintiff must recover.” It was conceded that the defendant did not take the property, and the question of fact as to the agreement being upon that condition, was, by this charge, left fairly to the jury, for the jury were told in the same sentence, that if the buildings were taken down in the manner testified by the defendant, that the [537]*537plaintiff could not recover. The jury did not believe the defendant, and their verdict is binding here. The question of law that arises, then, is this: does a permission or license to take down a house, given on a condition which is not performed, justify the taking down of the house?
I fully agree with the Chief Justice, in the opinion that this action cannot be sustained, on the ground of the doctrine that the defendant, by his non-compliance, became a trespassers ab initio, on which the case was attempted to he placed in the Supreme Court. That doctrine clearly applies only to cases of authority given by law.
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The Chancellor.
The defendant was in possession of the premises under the plaintiff, in such manner as to make him a tenant at will, for the purpose of sustaining an action [534]*534on the case in the nature of an action of waste. He was not a tenant for the purpose of sustaining an action for use and occupation, at least such is the weight of authority, although even on this point there is a serious conflict of authority, but the decision of the Supreme Court in the case of Brewer v. Conover, 3 Harr. 215, must place that question at rest in this state.
The dictum of Justice Nevius in that case, that the relation of landlord and tenant does not exist in case of occupation under contract of sale, cites as authority, and is based upon the case of Smith v. Stewart, 6 Johns. 46.
In that case, which was an action for use and occupation against a purchaser who had occupied under a contract for sale not carried out, the court remark: “ The better opinion is that he never was strictly a tenant, and never entitled to notice to quit, nor liable to distress, nor to an action of assumpsit for rent. This opinion is not inconsistent with the idea that for certain purposes he may be considered a tenant or in the situation of a tenant, even if it is not viewed as countenancing that doctrine. He may not be a tenant for the three purposes named, and yet for the purpose of. being prohibited when called to surrender, from disputing the title of the person from whom he derived possession, and for being liable for unauthorized spoliation when thus lawfully in possession, he may well be considered as a tenant.
In Suffern v. Townsend, 9 Johns. R. 35, it was said that a parol contract to convey is not a license to enter, and that if a license had been shown, the defendant could not have been in possession in any higher character than as tenant-at-will.
In the case of Jackson v. Miller, 7 Cow. 747, the Supreme Court of New York, in a well considered opinion delivered by Chief Justice Savage, regard a person in possession under a contract to purchase not carried out as a tenant-at-will, but as not entitled to notice to quit, which was the question in that case, and say, “ the general rule here is, that tenancies-at-will are to be considered as tenancies from year to year, merely for the sake of a notice to quit; but this [535]*535seems lo be subject to the exception of a tenancy-at-will created by an entry under a contract to purchase. It seems reasonable that it should be given in all cases where the tenant occupies, with the permission of the landlord, for an indefinite period. But the case of a contract to sell has been uniformly considered an exception.” The judgment of the court is not put upon the ground that there was no tenancy, and, therefore, no notice needed, but on the ground that this case was an exception to the rule requiring notice to a tenant.
In the case of Howard v. Shaw, 8 M. & W. 118, Barons Parke and Alderson both expressly declare that a purchaser in possession, under a contract to sell, was a tenant-at-will, but was entitled to occupy the premises rent free, and, therefore, no action for use and occupation could be brought against him for that time, but only from the time when the contract was at an end. C. B. Abinger differed, and held that, until the contract was at an end, he could not be considered a tenant. But this latter opinion should, perhaps, be taken as applying only to the purpose then under consideration-— his liability as a tenant for use and occupation.
The Supreme Court of Massachusetts, in the ease of Gould v. Thompson, 6 Metc. 224, held that a purchaser in possession under a contract of sale not fulfilled, is a tenant of the vendor. In that case, it had been in a previous suit settled that the defendant was not, bound to fulfill his contract, because the buildings on the premises had been destroyed by fire, upon which he had vacated the premises, and given notice that he would not accept the title. Yet the court held that until then he was tenant, and liable as such for use and occupation. The last part of the decision may be founded on some local or statute law, and is not law in this state.
Upon these authorities and upon principles applicable to the case, I have no difficulty in holding that a purchaser in possession of lands, under a contract to purchase, whether written or verbal, is a tenant-at-will for the purpose of sustaining an action on the case in the nature of waste, for de[536]*536struction committed while in such possession. It would be a great defect if no remedy at law was provided for such destruction of buildings, which might be the greater value of the property, where the contract was not fulfilled because not in writing, or because of some neglect of the vendor to perform some stipulation in exact compliance with the terms of the contract. That there may be a remedy in equity is not sufficient; the law should provide a direct remedy for such a wrong; and the remedy in equity depends upon many circumstances that may render it entirely inefficient. And for this purpose any entering upon and holding premises by permission of the owner, and subservient to his title, should be held to constitute a tenancy sufficient to maintain this action.
That tenants-at-will were liable at common law, and independent of this statute, for voluntary waste like this, is conclusively shown by the cases cited in the opinion of the Supreme Court, by Justice Depue, in the case of Moore v. Townshend, decided at February Term, 1869,
These questions, although not referred to in the ojfinion in the Supreme Court, were involved in the first part of the charge excepted to, and were discussed upon the argument before us.
The defence relied upon is the license; and the position in the charge insisted on as error was fatal to that defence. The charge was, “that if the plaintiff gave consent, upon the condition that the defendant should take the property under the agreement, the plaintiff must recover.” It was conceded that the defendant did not take the property, and the question of fact as to the agreement being upon that condition, was, by this charge, left fairly to the jury, for the jury were told in the same sentence, that if the buildings were taken down in the manner testified by the defendant, that the [537]*537plaintiff could not recover. The jury did not believe the defendant, and their verdict is binding here. The question of law that arises, then, is this: does a permission or license to take down a house, given on a condition which is not performed, justify the taking down of the house?
I fully agree with the Chief Justice, in the opinion that this action cannot be sustained, on the ground of the doctrine that the defendant, by his non-compliance, became a trespassers ab initio, on which the case was attempted to he placed in the Supreme Court. That doctrine clearly applies only to cases of authority given by law.
A license given upon condition that something else shall be done, is plain matter of agreement — a kind of agreement that is not void or prohibited by any law, nor is it contrary to good morals, nor to the policy of any part of the law of the stare. There is no reason why courts should not give the effect to it which the parties intended, and no other effect. This question, or any other in the case, has nothing to do with the statute of frauds. The parol sale of the premises is clearly void by the statute; that is admitted, and it is not attempted to be enforced. The question here is not as to the sale, but as to tearing down the buildings. A parol license to tear them down would have justified the act if there had been no talk of a sale. If there were in such case a condition to the license, not involving the statute of frauds, the question would be the same as here. That is whether a license to do an act upon a condition which is not afterwards performed, will justify the act.
The peculiar and artficial doctrine of the common law. as to conditions precedent and subsequent in estates in lands, does not apply here; it has never been applied, except as to titles to real estate.
There are many cases of license given on condition, in which there is no promise to perform the condition, or the promise is given under circumstances which, as in this case, make it void at law. A tenant may ask permission of his landlord to take the roof off his house and put on an orna[538]*538mental French roof at his own expense, the landlord may by letter give permission on condition that he shall put on the new roof. No promise is made by the tenant, or the tenant is an infant or feme covert. It is absurd — it is a libel on the law — to hold that there is no remedy against the tenant who removes the roof, leaves the house unprotected, and to become completely ruined by storms. This must be the result if the license is held valid to justify the removal because it is not yet forfeited by the breach of the condition. The doctrine applied by the Supreme Court to the plaintiff in this case, “ that if he has no contract by force of which he can be reimbursed his loss, it is a position of his own choosing,” has not been applied in other cases similarly situated. A purchaser who pays money on a parol contract to convey lands, which the vendor refuses to carry out, can recover the money back; and if a tenant puts on the lands improvements by permission of his landlord, under a void promise to convey or devise, he may recover such money back, even if he neglects to secure himself by a written contract, as required by the statute of frauds, although, in such case, his neglect is a contravention of the settled and declared policy of the law. This is the very point decided in Smith v. Smith’s administrators, 4 Dutcher 208.
The doctrine recognized in that case, that where a vendee in possession, of his own motion, and not at the instance of the vendor, makes improvements, he shall not recover if the contract of sale falls through, is without doubt correct; but it is placed on the ground that they were made by the plaintiff for .his own benefit. Here the act was not done by the plaintiff, nor was it for his benefit, but by the defendant for his own benefit, and at his own risk.
There are no cases or decisions which, in my opinion, sustain and establish the doctrine that a conditional license is a justification of a tort, although the condition be not complied with. If such is the established doctrine of the law, we must adhere to it, whatever the consequences.
But there has never been any such rule established. The [539]*539clear weight of authority, so far as any is produced, is the other way.
In Mumford v. Whitney, 15 Wend. 380, a license had been given to build a dam, on condition that the land of plaintiff should be protected by a wall. The court say: “ Whether license had been given was the point of inquiry; and if the plaintiff could prove that the license was conditional, and that the condition had not been performed, then he was absolved from the license; or rather, the license was never operative, because the condition had not been performed.” This doctrine is not overruled by the case of Pratt v. Ogden, 34 N. Y. 20, but is rather confirmed by it. The affirmance in that case is put upon the ground that there was no proof whatever in the ease that there was any condition annexed to the parol license under which the defendants justified; the error was the refusal of the court to charge upon such license. In the opinion it is said : “ The fundamental vice in these requests is the assumption that the license was upon any condition whatever. There was no proof in the case which warranted such inference. It was certainly competent for the plaintiffs to have shown that the license given was upon a condition, and then further to show, that that condition had not boon performed ; the ease would then have been brought within the rule laid down in Mumford v. Whitney,” from which is quoted the passage above extracted. “A court can never be called upon to charge upon an assumed state of facts not shown at the trial. The judge therefore properly refused to charge as requested.”
This was the ground of the decision of the case, in which the doctrine in Mumford v. Whitney is expressly approved. There are in the opinion, afterwards, speculations of the judge, not necessary to the decision, (and which may or may not have been approved of by the other judges,) as to the effect of a violation of the condition of the doing the injury, in which he holds that no damage could be recovered for acts done before the license was forfeited. And he bases these speculations upon the doctrine in case of a license re-[540]*540voiced, which justifies all acts done before revocation. The judge was evidently misled by a seeming semblance, which has no existence for the object under consideration. Every just mind of sound sense would say that a license which, by its terms or by its legal effect, was revocable at the pleasure of him who gave it, should justify the acts done under it, until it was revoked. And, on the other hand, that a license which was given on the express condition that something should be done by the licensee on his part, whether before or after he availed himself of it, should be no justification of the act, unless the condition should be performed.
The rule in one case is right and just; in the other, would be wrong in itself and produce great injustice. There is no analogy between the cases, and the reasoning concerning them, which has not the weight of a decision, is of no value except such as depends upon its soundness.
My conclusion, therefore, is, that the first part of the charge of the Circuit Court was correct.
The second part of the charge excepted to contains two distinct propositions. The first, that the title of the plaintiff to the premises in question, or to any part thereof, cannot be disputed in this action. The second, that it was immaterial whether the plaintiff had title to the gore or not.
The question as to the first part, so far as relates to all the premises but the gore, it seems to me is disposed of by the consideration which guided the decision' of the Court of Appeals in New York, in the case of Pratt v. Ogden, to wit, that there was no evidence in the case to which the charge could apply. The plaintiff being in possession under the sheriff’s deed, was to be deemed the owner, unless some evidence was given to affect his title. There was none; and as to that the result could not have been different if the charge had been the other way. And it is too well settled in this state to be questioned, that an error which is immaterial is no ground for reversal. Smith v. Ruecastle, 2 Halst. 357; Den, Steelman v. Steelman, 1 Harr. 66; Jackson v. Miller, [541]*5411 Dutcher 93; Graham v. Whitely, 2 Dutcher 284; Johnson v. State, Ib. 313; Schenck v. Cottrell, 1 Zab. 5.
"With regard to the gore, the case is different. The plaintiff did not own that at the contract, the license, or the destruction of the building, or until July, 1861. It is not necessarily included in the general boundaries in the sheriff’s deed, which are satisfied by the fact that part of the west boundary was Easton’s land, and the boundaries specified, and die reference to the two deeds by which it had been conveyed to the defendant in execution, are not falsa demonstrado in the sense in which that term is applied in the maxim, but are intended as the designation of the property conveyed.
But this gore was no part of the property about which the negotiation for the sale had been had, or the consent to enter and pull down had been given; it does not appear in the case until after the buildings had been taken away. The plaintiff proposed to sell the properly conveyed in the sheriff’s deed. The defendant so understood his offer, for he took that deed and prepared from it the conveyance to himself; this was done before the license.
The plaintiff' and defendant, may have believed, and no doubt both did believe, that Easton’s property joined tin-plaintiff, but the deficiency was not in the plaintiff’s land, but in Easton’s; a gore had been sold off from Easton’s property, so that the two did not join. The plaintiff made no representation about the property that would have affected his right had there been a written con trade to purchase, and had this suit been on that- The answer to the question whether he owned the Robeson property joining the Easton property is the only thing that can be construed into a representation. The answer was true, both literally and substantially, for the object for which it was asked. The question was only intended to designate the property which was sold to him at the sheriff’s sale, and which defendant knew he had once purchased. It did join the Easton property, but not all the way to the front. There was no evidence from which any fraud or misrepresentation could be [542]*542inferred on part of the plaintiff, or that could have been left to the jury for that purpose, and nothing which could make the title to the gore material in any suit between the parties. That the plaintiff, subsequent to the destruction of the shops, bought the gore for fifty dollars, and offered to convey it to the defendant, is no proof that he had agreed to convey; he testifies that he did it to avoid controversy, as he hoped it might end the difficulty.
If, then, there was no proof at all that the plaintiff had agreed to convey the gore, or that he had made any representation concerning it which the defendant could complain of the title to the gore was immaterial to the controversy, and the charge' of the Circuit Court was correct. It was of no more consequence to this controversy than a defect in the title of the Easton lot which the defendant expected to buy, which defect would have defeated his object, although that object was known to the plaintiff.
Nor could the charge upon the question of title have any effect as to the damages. The damages could only be those to the lot in the sheriff’s deed, on which the shops stood. The title to these, by presumption of law, from possession under the sheriff’s deed, must be taken to be in the plaintiff until some evidence is given to raise a doubt upon it. And even if the charge is erroneous in this respect, it could do no injury, and therefore is no ground for reversal.
The judgment of the Supreme Court must be reversed, and that of the Circuit Court affirmed.
For affirmance — The Chancellor, Scudder, Clement, Kennedy, Ogden, Olden, Vail, Wales. 8.
For reversal — Depue, Van Syckel, Woodhull. 3.
Ante 284.