Sastold, J.
The action was assumpsit,- by
the defendant in error, against the present plaintiff, to recover two hundred dollars, for the use and occupation of a plantation or tract of land, belonging to Goree, which, it is alleged, Hays had used, occupied and enjoyed for ovo year, (1828,) at his special instance and request, and by the permission of the former™ — which sum, for the consideration aforesaid, Hays is charged, to have undertaken and promised to pay. The trial yvas had on the general issue, and the plaintiff below recovered.
A bill of exceptions, taken on the trial, states that it was proved, Gores had leased or rented the land to Hays, for five years. “ Under this proof, the defendant requested tbs Court, to charge the jury, that if a special contrast v/as ¡¡roved, it was incompetent for the pkk’dff »-y h-kroduce proof of the value of [172]*172the land, for one year.” Also, “if they were satisfied, that the lease or .renting from Goree to Hays, was for a longer time than one year, and there was no evidence or memorandum of that contract, in writing, they could not find for the plaintiff.” The charge given was, “ that if the jury found the lease to endure for five years, and there was no memorandum in writing of the lease, the contract was void, in law; and that the plaintiff could resort to an implied promise, for use and occupation.”
In refusing to give, the instructions requested,and in instructing otherwise, as stated, the Courtis charged to have erred.
- The counsel for the plaintiff in error insists, that a former decision of this Court, in the case of Bell vs. The heirs of Ellis, and the cases there referred to, are authority for a reversal of the judgment, in this case. On the part of the defendant, it is contended, that the cases cited recognise a different doctrine, sustaining this judgment.
In the case of Bell vs. The heirs of Ellis, Bell, the .original defendant had occupied the land, under a contract of sale, but the contract was illegal and void, because not made pursuant to a statute, which had authorised the sale of the estate of the heirs, in a particular manner. Subsequently the land was sold, according to the provisions of the statute, to a different person — the consequence of which was, that Bell was under the necessity of yielding the possession, at the end of the first year. The question was, whether rent, for the year, could be recovered against him, in an action of assumpsit, for use and occupation.
This Court then remarked, “that the action upon [173]*173an implied promise. icr rent, will only lie, in virtue of the statute, a,id where the relation of landlord and tenant is preserved: nod, that this relation will be destroyed, v/hoa the possession is held under a contract of sale; though that contract may be void— ineffectual to convey the premises — or even prevented by the purchaser, himself:” and, that these principles were fatal to that nelion.”
This doctrine was declared, with reference, alone, to a contract, for the conveyance of the fee — and, in that view, with the necessary explanations of the other existing remedies, expressed or ira pled, there is conceived to. be no objection to it. But the decision referred to, does not declare, that the effect of all yoid contracts, for possession, shall be a denial of the right of recovery, in an action for use and occupation, nor a destruction of the relation of landlord and tenant. It soys the relation must exist, and that it will be destroyed, when the possession is held under a contract of sale, though the contract be void.
That decision was made with reference to the provisions of the statute of this State, “for the recovery of rent,” &e., passed in 1812, which is similar to the English statute, of 2 George, II, and to the statute of New York, on the same subject. Ours provides, that it shall be lawful for any person ,to whom any rent may be due, “ when the demise is not by deed, or, if by deed, not specifying the rent to be paid, to recover a reasonable satisfaction for the tenements occupied by the defendant, in an action on the case, for the use and occupation of what was held or enjoyed ; and if, on evidence, on the trial of such action, any parol demise, reserving any rent, or a demise by deed, but. no rent therein agreed on — -in ei[174]*174ther case, f-Iio plaiKifTIn ¡mob cans, shall not be non-suited, but sfewU vc^over r. roa. ton feble rotiofaotion for the oxws/fed.”
The tormo,r ter.oi ,l_ \ of ibw Cíente to which reference bar, beer.’ nwi'te, rests for its authority mainly om tho caso in New York, of Smith vs. Stewart.
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Sastold, J.
The action was assumpsit,- by
the defendant in error, against the present plaintiff, to recover two hundred dollars, for the use and occupation of a plantation or tract of land, belonging to Goree, which, it is alleged, Hays had used, occupied and enjoyed for ovo year, (1828,) at his special instance and request, and by the permission of the former™ — which sum, for the consideration aforesaid, Hays is charged, to have undertaken and promised to pay. The trial yvas had on the general issue, and the plaintiff below recovered.
A bill of exceptions, taken on the trial, states that it was proved, Gores had leased or rented the land to Hays, for five years. “ Under this proof, the defendant requested tbs Court, to charge the jury, that if a special contrast v/as ¡¡roved, it was incompetent for the pkk’dff »-y h-kroduce proof of the value of [172]*172the land, for one year.” Also, “if they were satisfied, that the lease or .renting from Goree to Hays, was for a longer time than one year, and there was no evidence or memorandum of that contract, in writing, they could not find for the plaintiff.” The charge given was, “ that if the jury found the lease to endure for five years, and there was no memorandum in writing of the lease, the contract was void, in law; and that the plaintiff could resort to an implied promise, for use and occupation.”
In refusing to give, the instructions requested,and in instructing otherwise, as stated, the Courtis charged to have erred.
- The counsel for the plaintiff in error insists, that a former decision of this Court, in the case of Bell vs. The heirs of Ellis, and the cases there referred to, are authority for a reversal of the judgment, in this case. On the part of the defendant, it is contended, that the cases cited recognise a different doctrine, sustaining this judgment.
In the case of Bell vs. The heirs of Ellis, Bell, the .original defendant had occupied the land, under a contract of sale, but the contract was illegal and void, because not made pursuant to a statute, which had authorised the sale of the estate of the heirs, in a particular manner. Subsequently the land was sold, according to the provisions of the statute, to a different person — the consequence of which was, that Bell was under the necessity of yielding the possession, at the end of the first year. The question was, whether rent, for the year, could be recovered against him, in an action of assumpsit, for use and occupation.
This Court then remarked, “that the action upon [173]*173an implied promise. icr rent, will only lie, in virtue of the statute, a,id where the relation of landlord and tenant is preserved: nod, that this relation will be destroyed, v/hoa the possession is held under a contract of sale; though that contract may be void— ineffectual to convey the premises — or even prevented by the purchaser, himself:” and, that these principles were fatal to that nelion.”
This doctrine was declared, with reference, alone, to a contract, for the conveyance of the fee — and, in that view, with the necessary explanations of the other existing remedies, expressed or ira pled, there is conceived to. be no objection to it. But the decision referred to, does not declare, that the effect of all yoid contracts, for possession, shall be a denial of the right of recovery, in an action for use and occupation, nor a destruction of the relation of landlord and tenant. It soys the relation must exist, and that it will be destroyed, when the possession is held under a contract of sale, though the contract be void.
That decision was made with reference to the provisions of the statute of this State, “for the recovery of rent,” &e., passed in 1812, which is similar to the English statute, of 2 George, II, and to the statute of New York, on the same subject. Ours provides, that it shall be lawful for any person ,to whom any rent may be due, “ when the demise is not by deed, or, if by deed, not specifying the rent to be paid, to recover a reasonable satisfaction for the tenements occupied by the defendant, in an action on the case, for the use and occupation of what was held or enjoyed ; and if, on evidence, on the trial of such action, any parol demise, reserving any rent, or a demise by deed, but. no rent therein agreed on — -in ei[174]*174ther case, f-Iio plaiKifTIn ¡mob cans, shall not be non-suited, but sfewU vc^over r. roa. ton feble rotiofaotion for the oxws/fed.”
The tormo,r ter.oi ,l_ \ of ibw Cíente to which reference bar, beer.’ nwi'te, rests for its authority mainly om tho caso in New York, of Smith vs. Stewart.
There are other decisions by the Supreme Court of New York, which also relate to this subject.—The case of Osgood vs. Dewey,a was an action'for use and occupation. The Court held that the action was sustainable upon an implied as well as an express permission of the landlord. That a tenant 'who, after the expiration of his term and payment of rent, under a parol demise, continues in possession, without any new agreement with the landlord, can not, in an action against him for the use and occupation, of the premises, subsequent to the expiration of the former term, dispute the title of the plaintiff. That his subsequent holding will be deemed to have been by the implied permission of the original lessor.
Again, in the case of Abeel vs. Radcliff,b the same doctrine, of subsequent liability, was maintained against a lessee, by deed, who held over after the expiration of the time; also against one holding under a covenant contained in the expired lease, for a renewal of the lease, though no price or rate of rent, for the subsequent term, was expressed. Such was [177]*177declared to be the law of that contract, notwithstanding the deed contained a covenant for a renewal of the lease, without sufficiently defining the term of renewal; and for which uncertainty the Court considered that covenant void, under the statute of frauds, so that it could not be enforced. The decision of this Court in the case of Allen vs. Booker,a referred to by the defendant in error, is also entitled to its influence on this case. It is ruled, in that case, that an action of assumpsit is sustainable, to recover back money, paid on a parol purchase of land — such contract being void, by the statute of frauds.
The principle of the decisions last reviewed, I understand to be, that though contracts be void, under the statute of frauds, so that the law will not enforce them — yet, that the maxim ex turpi causa, non oritur actio, does not apply to such. That if one has entered into such contract, and received value under it, the law creates a responsibility, and implies a promise to pay, or account to the other, according to the obvious justice of the case.
In the present case, we think the parol lease, and the enjoyment of possession, under it, for a year or more, created the relation of landlord and tenant, at least for the one year; and during this time, the occupant would have been entitled to noticé to quit— consequéntly, that this action was sustainable, for a fair and reasonable rate of rent, for the same term.
We are unanimous in the opinion, that the judgment must be affirmed.
6 Johns, Rep. 46.