Christiancy J.
The plaintiff in error brought his action of assumpsit against the defendant in a Justice’s Court, where the plaintiff obtained a judgment, which was taken by appeal to the Circuit Court, where new or amended pleadings were filed; plaintiff declaring on the common counts ; a count for use and occupation of a house and lot; a count upon a special contract to pay rent; another on a special contract for the purchase, by the defendant, of a house and lot upon which a balance was claimed; and two coixnts upon separate judgments alleged to have been theretofore recovered by the plaintiff against the defendant in a Justice’s Court.
The plea was the general issue, with a notice which is not important to be considered here.
On the trial in the Circuit, upon the plaintiff’s offering evidence in support of his action, the defendant objected to the introduction of any evidence under the declaration on the ground of misjoinder, claiming that counts upon judgments could not be joined with the other causes of action. [360]*360The court sustained "this objection, but gave the plaintiff leave to elect upon which he would go to trial.
Plaintiff’s counsel excepted to this ruling,- but elected to proceed upon the other counts, “and ashed leave to discontinue as to the counts upon judgment, and to withdraw the same from the consideration of the court and jury.” This was granted, and thereupon the trial proceeded for the causes of action in the remaining counts.
This ruling of the court is now assigned for error.
We are inclined to think the court erred in this ruling, and that the objection for misjoinder can not be sustained, since the statute — Comp. L. %4J550 — allowing assumpsit to be brought upon judgments and specialties — see 1 Chitty’s Pl. pp. 228 to 230, and authorities there cited; People ex rel. Drew v. Circuit Court, 1 Doug. Mich. 434— is no authority for the general proposition that a statutory, can not be joined with a common law action. The action in that case was a penal action brought upon .a statute upon whiek alone the whole cause of action rested. The question was one of amendment. Though the language used is very broad, it must be confined to the facts of that case, which did not call for decision of so broad a proposition. In the present case, it is .not the right, but merely the form of this action which depends upon the statute.
But we are not under the necessity of deciding upon this question of misjoinder, as we are all of opinion that the plaintiff, on- his own motion, having discontinued as to the counts upon judgment, waived any objection to the ruling on the ground of the misjoinder. The counts upon the judgment were, in effect, stricken from the declaration, at his own request. A reversal of the judgment here would - not replace them.
Had the plaintiff, under the constraint of this adverse ruling, merely elected to proceed with the remaining causes of action, the result might have been different.
[361]*361The other questions in the case arise under the count on the special contract to pay rent, and that for use and occupation.
The evidence tended to show that Robinson, Duncan and Dykeman, being the owners of the fee, in 1857 or 1858 made a verbal contract with defendant, Ellis, for the sale of the lot in question to him for $125, payable in one year, Ellis agreeing to build a house on the lot within the year; that Ellis went into possession, and, in part performance of the contract, built the house, but paid nothing on the purchase money; that he occupied the premises and lived in the house 'a year or more, and then made a verbal sale of his interest in the contract to one Shaw, who, with the assent of Robinson, Duncan' and Dykeman, took Ellis’ place in the contract, the time originally fixed for payment having then expired, but the vendors not having insisted upon payment, and allowed it to run without fixing any particular time; that Shaw went into possession of the house and lot and remained till some time in 1861, when he left, having paid nothing on the purchase money; but while in possession, on the 28th of September, 1860, he borrowed of the plaintiff $120, and gave. a note, secured by his mortgage upon the premises, payable in one year, telling the plaintiff he had a paid up contract for the premises; that plaintiff shortly after learned the true state of the title, and that nothing had been paid; that when, or soon after, Shaw left, he rented the premises to Ellis, the defendant, at $1.25 per week, who was to pay the rent to one Myers, the agent of Shaw, to be paid by Myers to plaintiff on Shaw’s indebtedness to the latter; that defendant went into possession under this agreement; that afterwards (after some rent had become due) Shaw, Ellis and the plaintiff all met, and it was mutually, though verbally, agreed between them that Ellis (defendant) should pay the rent to the plaintiff, aucl the latter should indorse it, when paid, upon the indebtedness of Shaw to the plaintiff (there was some evidence [362]*362tending to show that Ellis knew of the mortgage); that plaintiff did not release, nor agree to discharge, any part of Shaw’s indebtedness to him, but ouly to indorse it when it should be paid.; that Robinson, Duncan and Dykeman (though nothing had ever been paid them) had taken no steps to forfeit the contract, but that in May, 1862, Robinson and Dykeman, with the heirs, of Duncan, sold and conveyed the premises to the plaintiff, the defendant being still in possession, never having paid any rent; that twelve days after this conveyance (May 18, 1863), the plaintiff served upon the defendant a written notice or demand for the defendant to leave and surrender up the premises to him within fourteen days. This notice was served on the defendant by one Eisher, who does not appear to have been employed, or to have had authority for any other purpose than to deliver the paper to defendant. Finally, in April, 1864:, the house and lot was sold by the plaintiff to the defendant, who still remained in possession.
Upon this statement of facts, the first question is, whether the action could be maintained by the plaintiff upon the express verbal contract to pay rent?
And we see no ground upon which the action could be maintained upon it, unless, as claimed by the plaintiff, the agreement (being made between Shaw, the lessor and mortgagor, the defendant as lessee, and the plaintiff as mortgagee) operated as an attornment of the defendant to the plaintiff — a question we shall presently consider. This agreement did not amount to' a novation, as the plaintiff did not release or give up any part of his claim against Shaw, who still remained liable for the Avhole. The defendant’s promise, therefore (to say nothing of any other objection), was purely collateral, “to answer for the debt” of Shaw, and therefore void under the Statute of Frauds.
The letting, by the mortgagor to the defendant, having been subsequent to the mortgage, the plaintiff could not, as mortgagee, recover rent of the defendant without an actual [363]*363attornment to him, even where the mortgage is recognized as the conveyance of a title.— Evans v. Elliot, 9 Ad. and El. 342; Alchorne v. Gomme, 2 Bing. 54; McKircher v. Hawley, 16 Johns. 288; Jones v. Clark, 20 Id. 50.
But admitting (which I think there is much reason to doubt) that the verbal arrangement between Shaw and the plaintiff and defendant, in reference to the rent, would have constituted an attornment, where, as under the old common law, a mortgage was recognized as a conveyance of the title, giving a right of possession to the mortgagee; I do not think the legal notion of attornment can have any proper application as between the mortgagee and the tenant of the mortgagor under the laws of this state.
A mortgage here conveys no title to the mortgagee, without foreclosure and sale. Until such foreclosure and sale, it constitutes only a lien as security for the debt.— Dougherty v. Randall, 3 Mich. 581; Caruthers v. Humphrey, 12 Id. 270; Ladue v. D. and M. R. R. Co. 13 Id. 380; Van Husen v. Kanouse, Id. 303. And since the statute of 1843 Gom.p. L. —-the mortgage gives no right of possession until foreclosure and sale.— Baker v. Pierson, 5 Mich. 456; Crippen v. Morrison, 13 Id. 23. As a purchaser under the foreclosure sale he stands in the same position as any other purchaser.
Such being the condition of the mortgagee, before he becomes a purchaser at the forclosure sale, I am at a loss to perceive how his position gives him any more right or capacity for receiving an attornment from the tenant of the mortgagor, than a judgment creditor would have, where a judgment is a lien, to receive an attornment from the tenant of the judgment debtor.
Nor do I perceive how the agreement between Shaw and the plaintiff and defendant stands upon any different principle, or gives any greater rights than it would if the plaintiff lfad held Shaw’s note without the mortgage.
[364]*364If it be said that, though the mortgage does not give the mortgagee the right to possession against the will of the mortgagor, yet, by the consent of the mortgagor and the tenant, he may be let into possession, and thus acquire the right to rent; so, I reply, may any other person not holding a mortgage acquire, in the same way, the right to possession, and the right to rent, by any valid agreement to that effect. But, in both cases alike, I think it would depend upon the contract as such, which might be made between them, and not upon the doctrine of attornment. If the nature of the agreement requires it to be in writing, under the Statute of Frauds in the one case, it must, I think, equally require it in the other.
Where the mortgage is recognized as conveying the fee or reversion (the title of the lessor or some less estate carved out of it) there, especially when it gives the right of possession also, there is something to rest an attornment upon. But, without this, I see no basis upon which an attornment can rest. See Co. Lit. (by Thomas) Vol. 2, pp. 356 to 400; 2 Bl. Com. 288, 290, and note; 2 Greenlf. Gr. 84, and note.
The charge requested on this point was, therefore, properly refused, and the charge given was, in this respect, sufficiently favorable to the plaintiff.
The remaining questions arise under the count for use and occupation. And it may aid us in the proper understanding of these questions, first, to determine what, upon the state of facts already given, were the legal rights and relations of the parties at the time the plaintiff obtained his title, and what rights he thereby acquired.
ITp to this time, the defendant first, and then Shaw, who took his place and whose tenant he afterwards became, were in possession under an agreement to purchase, which, though never performed by payment of the purchase money, had never been forfeited and was still open. This agreement, being verbal, was void at law under the Statute o! [365]*365Frauds, and gave no legal rights in the property; but, being partly performed, might, on the one hand, in a court of equity have been enforced by Shaw, on his making payment, and a legal title have been thereby acquired; while, on the other hand, Robinson, Duncan, and Dykeman, might at law have treated the contract as void, unless restrained by a court of equity, or they might have proceeded to forfeit it for non-payment, so as to cut off any equitable rights of Shaw, growing out of the part performance. But they could not treat it as thus forfeited without giving reasonable notice, or in some way indicating their intention to assert their rights to the property in some manner inconsistent with the further continuance of the contract. And whenever they should give the notice or assert such right, Shaw could only prevent the forfeiture and preserve his equitable rights by offering, within a reasonable time, to pay the purchase money. But if he made no such offer within a reasonable time, and especially if he did not offer to perform at all, then, after a reasonable time for such performance had elapsed, the forfeiture would take effect, and a court of equity would not interfere.
In fact, if this were not an equitable action — one in which the promise to pay can be raised or implied only from such a state of facts and circumstances as render it just and equitable between the parties that such payment should be made — I should have some doubt whether, in this action at law, we could notice the merely equitable rights growing out of this partly performed verbal contract, without the decree of a court of equity establishing the right.
But all parties holding under this contract of purchase were, as between them and the owners, tenants at will of the latter, but not liable for rent while the contract remained open, and no notice to quit or pay rent, or of an intention to forfeit, had been given.— Dwight v. Cutler, 3 Mich. 566.
[366]*366At common law, the sale by the former owners to the plaintiff would, of itself, have determined the tenancy at will.— Go. IA.t. 55 (b.) 57 (a.); 1 Washb. R. Pr. 385. But under our statute — Comp. L. § 2807 — notice would seem to be required.
The plaintiff, as well as all the other parties, being aware of the contract and the state of the title when he purchased, took the property subject to the same equities to which it was subject in the hands of the grantors.
The notice to quit, given by the plaintiff to the defendant, containing a demand of the possession, was, I think, properly served upon the defendant, who was the tenant in possession' under Shaw. The latter having been long in default, having left the country, and, so far as appears, his residence being unknown, must be considered as assenting that in all matters growing out of this contract, or connected with the possession of the property, the owners might look to the tenant in possession as standing in his right. And the owner could not reasonably be compelled to let this contract remain open and lay out of the use of the property for an indefinite period of time, until Shaw could be found, and the possession demanded of him personally.
The notice and demand of possession served upon the defendant operated, I think, both as an assertion of the intention to forfeit the contract and as a notice to quit.
Though the notice demanded possession in fourteen days, it could only operate, under the statute above cited to determine the tenancy, at the end of three months after its service. As the plaintiff can not claim under the agreement with Shaw (to pay rent weekly), and must rely upon his claim for a reasonable compensation, independent of any special agreement, he can not have the benefit of the shorter intervals at which the rent was payable to Shaw.
But the notice, though specifying fourteen days, was a good notice to quit at the end of three months, inasmuch [367]*367as no proceeding was instituted upon it within that time. Chamberlin v. Brown, 2 Doug. 120.
The tenancy at will was therefore terminated at the end of three months from the service of the notice, and the defendant became thereafter a tenant at sufferance. But to render him liable to the plaintiff for use and occupation, it was not necessary to terminate the tenancy at will. It was only necessary for the plaintiff to indicate his intention to forfeit the agreement and call for the possession. This was done by the demand of possession within fourteen days, which was fair notice to defendant that plaintiff wanted the possession at the end of that time, and that if he remained longer, he could not expect to remain rent free.
If the fourteen days was not a reasonable time for Shaw or the defendant in his behalf to pay the purchase money, he could only avail himself of this, even in a court of equity, by showing that he had offered to perform within 'a time which was reasonable. But here, though the possession was retained for some two years after, and no proceeding was instituted, yet no offer was ever made to perform the contract; nor was any objection ever made that the time fixed by the notice was too short.
It is very clear that assumpsit for use and occupation can not be maintained where the relation of landlord and tenant did not exist during the occupancy, or when the holding has been adverse to the owner, because, among other reasons, a disputed title can not be tried in an action of assumpsit.— Woodf. L. & T. 356; Evertsen v. Sawyer, 2 Wend. 507; Kittredge v. Peaslee, 3 Allen, 237. But when the relation exists, and the occupancy has been beneficial to the defendant, we think, upon principle, and the weight of American authority, the law implies a promise to pay a reasonable compensation, unless there be an express contract, or other circumstance, inconsistent with the notion of such promise or with the duty or obligation to pay. This was settled in Dwight v. Cutler, already cited, where [368]*368the occupancy by the defendant was as tenant at will. And we think the mere fact of the occupancy by A of the land of B, is prima facie evidence that A is the tenant of B, which can only be rebutted by showing some fact or circumstance tending to rebut this inference.— Keyes v. Bill, 30 Vt. 759, But this inference would not tend to establish one kind of tenancy more than another, but simply the relation of landlord and tenant. This exists in the case of a tenancy at sufferance, though it is not so complete in all respects as in other kinds of tenancy.
But it has been said that, at common law, a tenant at sufferance was not liable for rent; and this must be so beyond question, as to rent, strictly so called, which always grows out of express contract, and is fixed and definite in amount. The contract being terminated before the tenancy commences, there is nothing from which rent, as sioch, can arise. But the reason generally given for the rule is broad enough to cover the reasonable compensation for use and occupation, or rather it applies to this as well as to rent. That reason is, the laches of the owner, that it is the landlord’s own folly to suffer the tenant to continue in possession after the determination of the rightful estate; on the ground, it would seem, that the owner has the right to reenter and terminate the tenancy at anytime. — See Chitty’s note to 2 Bl. Com. 150; Cruise’s Digest (by G-reenleaf), Title 9 Ch. %, §5; 1¡. Kent Com. 117; 1 Washb. on R. Pr. 408.
Neither Littleton nor Colee notice any such rule, nor does Blaclestone, except, perhaps, inferentially, while he apparently admits that the tenant would be liable for the mesne profits at common law, which would be quite as inconsistent with the reason given for the rule as compensation for use and occupation. Cruise cites no authority for the rule, and Kent cites Cruise. But Ghitty, in his note, cites Finche’s case, 2 Leon. 143, and Washburn cites this note and the case in £ Leonard, and also refers to Delano v. Montague, 4 Cush. 42 (which refers to the rule without deciding it), [369]*369and Flood v. Flood, 1 Allen, 217, which adopts the rule upon the authority of Finche’s case, upon which alone the doctrine seems to rest. On reference to this case, as reported in 2 Leonard, it will be found to decide nothing of the kind, and could not, as it is expressly declared that there was not, in that case, any tenancy at sufferance. But Coke, one of the counsel, asserts arguendo, that such was the law, and the court, in giving the opinion, assume the same thing, and say by way of illustration, “Tenant at sufferance, he can not be in this case. In case of a common person, when the lessee for years holds over his term, he is become tenant at sufferance, and such a tenant shall not pay rent; -for it is the folly of his lessor to suffer his tenant at-sufferance to continue in possession of the land after his term, so as any tenancy at sufferance is made by the laches of the lessor, which laches can not be imputed to the Queen.” (The Queen was lessor in that case.)
It may, however, be admitted that this dictum fairly states the general rule of the common law as applicable to ordinary cases of tenancy at sufferance (no notice to quit being required in such tenancy at common law), but it is by no means clear that it Avas applicable, or intended to apply, to such tenancy after notice to quit; nothing being said upon that point in the case put. But, upon principle in the case put, of a tenant for years holding over after the expiration of his term, there may be some reasonable ground for saying that, until such notice or demand of possession, it is the landlord’s OAvn folly or negligence to suffer the tenant to remain; since, if he Avanted the possession, he ought to demand it, or re-enter; and that, until he shall indicate to the tenant his Avislr to have the premises, the tenant may infer that he does not Avish the possession, or that the tenant shall leave the premises vacant, nor intend to insist upon rent, or he Avould say so.
But after the rightful estate (as the tenancy for years) is terminated, and the landlord gives the tenant notice to [370]*370quit, and demands the possession, this is as clear an indication of his desire to have the possession as an actual entry would be; and the tenant who has refused to give up the possession when thus demanded, can not justly be heard to complain that the landlord has been guilty of laches for not putting him out by force, or resorting to legal process to that end; nor to claim that for this laches he ought to be allowed the use of the property without compensation. It is little short of absurd to hold that, in such a case, the landlord has been guilty of such laches’ as should deprive him of all compensation' for the use of his property. And such must have been the opinion of Parliament, when by the statute of 4 Geo. 2 Ch. 28, § 1, the tenant holding-over after the termination of his term (tenant at sufferance), after possession demanded, was made liable to double the yearly value.
Such also must have, been the opinion of our legislature, when they rendered the tenant in such case liable to treble damages, after notice to quit or demand of possession under Chap. 150, Comp. L. § 4-997. And though the landlord can only obtain treble damages, by first obtaining restitution under the special proceedings there given; yet whatever may have been the common law, it can no longer be said, in the face of this statute, that the owner, after demanding possession in such a case, has, by omitting to re-enter by force, or to resort to legal process to eject the tenant, been guilty of such laches as should deprive him of all compensation for the use of his property. And the acceptance of, or the bringing suit for such reasonable compensation, must be considered as an election to accept the actual damages,' and to abandon all claim for treble - damages.— See Doe d. Cheny v. Batten, Cowp. 243, and cases there cited; 7 East, 314, n. And in the present case, especially, there is no ground for holding that the plaintiff must first obtain restitution under the statute, or by ejectment, and then bring his action for mesne profits, since the defendant has purchased [371]*371the premises from the plaintiff, and since the purchaser, can not be ejected.
We are aware that in England it was held that assumpsit for use and occupation could not be maintained prior to, or independent of, the statute — 11 Geo. 2 Ch. 19 — unless there had been an express undertaking to pay. But since the old notion that such a claim savors of the realty, and could, therefore, be recovered only by an action of a higher nature, has been quite generally exploded, and' especially since the true theory of implied promises in assumpsit has come to be better understood and settled, and such promises no longer rest merely upon the inference that a promise in fact has been made, but upon the duty of the defendant to vay— a duty which he will not be heard to deny that he. has promised to perform — courts in this country have very properly held that assumpsit for use and occupation may be maintained at common law. .And we are certainly unable to see why the implied promise to pay a reasonable compensation for the use of the owners premises, does not, within the limitations above laid down, come as clearly within the principle of an' implied promise at common law, as the like promise to pay for the use of a house, or the reasonable value of goods purchased. This we understand to be the principle settled in Dwight v. Cutler, and we think it equally applicable to the case of a tenancy at sufferance, at least after notice to quit, or demand of possession, as to any other tenancy.
We think, therefore, that upon the case thus far stated, the plaintiff would have been entitled to recover a reasonable compensation for the use and occupation of the premises, from the expiration of the fourteen days mentioned in the notice up to the time of the sale of the premises to the defendant.
But the defendant undertook to meet the case already stated by an attempt to show that the relation of landlord and tenant did not exist between him and the plaintiff, but [372]*372that his holding was adverse, so far as related to the house. And for this purpose he was allowed to show, under objection, that at the time the notice was served upon him by Fisher, he had told Fisher that he claimed to own the property.
It did not appear that Fisher was .employed by the plaintiff for any other purpose than merely to hand the notice to the defendant, or that he had any authority beyond this. Had the defendant entered into a conversation at the time with Fisher in relation to the mode of service, this would have related to a matter'within the agency, of Fisher; and what defendant might have said upon that point, might have been a part of the res gestee, and admissible in his own favor. But if defendant had remained silent when the notice was delivered to him by Fisher, could this have been treated as evidence tending to show an admission of the plaintiff’s right or of the defendant’s tenancy? I do not think it could; and I can therefore see no ground upon which the evidence of his statements to Fisher can be received in his own favor.— See Emerson v. Harmon, 14 Me. 271; Crosbie v. Leary, 6 Bosw. 312; Morrill v. Foster, 82 N. H 358; Parker v. Goldsmith, 16 Ala. 526; Plumer v. French, 22 N. H. 450; Osgood v. Coates, 1 Allen, 77; Thompson v. Mawhinney, 17 Ala. 362; Morrill v. Titcomb, 8 Allen, 100; Byden v. Moore, 11 Pick. 362.
Admitting that defendant’s statement, if made to the plaintiff himself, instead of Fisher, would have been admissible in his own favor (upon which I express no opinion), it was in this case merely the statement of the defendant himself to a third person who was under no obligation to inform the plaintiff of it, and it does not appear that he did so. If mere words can constitute an adverse claim, they must at least, in such a case, come to the ears of the owner.
This evidence was therefore erroneously admitted, and the testimony of the defendant himself, as to what he told Fisher, stands upon the same ground.
[373]*373The defendant, as witness in his own behalf, was, under objection, allowed to be asked the general question, “How did you claim to occupy the properly?” To which he answered, “I considered it mine.” This, I think, was also erroneous. No attempt was made to bring home to the plaintiff a knowledge of this claim. It was merely testifying to the state of the witness’ own mind.— Law v. Payson, 32 Me. 521. The question upon this point was whether the defendant did, in fact, hold adversely; and this was to be determined by the jury from facts produced in evidence, such as showing that he went in under some colorable claim of right, at least, hostile to that of,the owner, or that the landlord’s title -had become extinct, or that he had subsequently obtained it, or at least some colorable claim to it, upon which, though unsound, he still might, in good faith, have relied, as against the owner, and that the owner had been informed that he was holding or claiming to hold in hostility to him.
But here the defendant went into possession, admitting thé title of the owner (through whom plaintiff derived title) Remice v. Robinson, 7 Moore, 539; Rennie v. Robinson, 1 Bing. 147; Russell v. Allard, 18 N. H. 225 — and after remaining quietly in possession for a long period, without any overt act or any declaration to the plaintiff or his grantors, indicating a hostile holding, until that possession is demanded of him by the plaintiff (the owner), and ho could not then, for the first time, by mere words, without any facts to sustain them, or by a mere silent opinion or determination of his own mind, make his holding adverse to the owner, so as to prevent the latter from treating him, at his option at least, as tenant at sufferance. — Balls v. Westwood, 2 Camp. 11. If he could do this, the maxim that a tenant is estopped to deny the title of his landlord, would cease to have any practical value at the very moment when it is most required for the purposes of justice.
[374]*374He might, it is true, set up any right acquired by him since he went into possession, not inconsistent with the title of the parties under whom he entered at the time he took the lease or went into possession. He undertook to show this by the attempt to show that he had purchased the house at constable’s sale on execution against Shaw, and that there was an agreement between himself and the plaintiff’s grantors (then the owners), that the house shall be considered as the personal property of Shaw, for the purpose of sale on the execution.
But this defense rested upon the execution sale; and to establish oven a colorable title or claim under this sale, it was necessary to show, by legal evidence, the execution, the judgment in the attachment suit, and the proceedings necessary to give the justice jurisdiction.
The docket was introduced, showing what purported to be a judgment, but silent as to any affidavit or bond. It stated that execution had been issued, but did not show whether it had been returned. Neither the affidavit nor the bond required to give jurisdiction, nor the execution, nor any of the files, were produced. But the defendant was allowed to give parol evidence of their contents, after merely showing by the justice who rendered the judgment, that he delivered the docket, and, he believed, the files also, to his successor; that he had looked for tbe files in his office since and could not find them; and, by his successor, that he was very certain he had not received the files, but that he had not searched for them in his office.
Without this search, we think the loss of the papers was not sufficiently proved to admit parol evidence of their contents.— Jackson v. Frier, 16 Johns. 193; Woods v. Gassett, 11 N. H. 442; Kimball v. Bellows, 13 N. H. 71; Morrill v. Foster, 32 Id. 359; Depew v. Wheelon, 6 Blackf. 485.
It can hardly be expected that the second justice, after the lapse of years, could recollect whether the files in a particular case had been delivered to him by his predecessor, [375]*375without some special circumstance (which he does not mention) for calling his attention to the fact. They should have been delivered to him with the docket, and the former justice thinks they were. In such a case, however confident the second justice might seem that he had not received them, there can be no reasonable certainty without search. The reason for requiring clear and satisfactory proof of loss in such a case is very strong. The very fact that the justice had issued the attachment, and proceeded to judgment and execution, is proof that he supposed all the preliminary papers to be in due form; and this must, therefore, be the impression left upon his mind afterwards. If there were any.defects — as is quite common where such proceedings have been ex parte, and no question raised before the justice — he would of course very honestly testify that all were proper 'and regular, while an examination of the papers themselves might disclose fatal defects, never brought to his attention.
There was, therefore, no legal evidence that there had over been any constable’s sale on execution, or any adverse holding by the defendant — nothing to rebut the inference of tenancy arising from the occupation by permission of the owner.
It may be proper also tó notice here that the house, which the original verbal contract required Ellis to build on the lot (whether constructed on blocks or firmly attached to the soil), must, within the fair meaning of the contract as properly held by the court, be treated as a part of the real estate; if it would not have been so held without such special requirement.— Eastman v. Foster, 8 Metc. 26; Ogden v. Stock, 34 Ill. 522. Any verbal contract, therefore, between Ellis and the owner, after the house was erected, for its conversion to personal property, or its severance from the realty, would be as clearly within the prohibition of the statute of frauds, as ^f it had been a contract for the conveyance of a part of the lands. And there is no evidence [376]*376tending to show a part performance so as to take the supposed verbal agreement out of the statute, even in a court of equity. The court, therefore, erroneously left it to the jury to find such agreement from the evidence. As real estate, the house could not be sold at constable’s sale on execution from a Justice’s Court.
Whether the testimony of Bishop, offered by the plaintiff to show an admission by the defendant, on the trial of the case before the justice, that $150 was due for rent of the house, was properly excluded by the court, as not rebutting, because it might have been introduced as a part of the plaintiff’s evidence in chief, is a question upon which the authorities are not agreed. See on one side Shepard v. Potter, 4 Hill, 202; 1 Cow, and Hill’s notes to Phil. Ev. note 500. On the other, Star hie Ev. (Phila. Ed.) 608, and Jacobs v. Tarleton, 11 Q. B. 419. And as there is to be a new trial in the case, we do not deem it necessary to decide the point here, as there is little probability. that the question will again be presented in the case in the same form.
The judgment must be reversed, with costs, and a new trial awarded.
Cooley Oh. J. and Graves J. concurred.
Campbell J.
I do not think that under any system of law which ever prevailed, concerning mortgages, the dealings between Shaw, Ellis and Hogsett would have constituted the latter mortgagee in possession. Had they done so, I am not prepared to say that when a mortgagor voluntarily and intentionally gives up possession to the mortgagee, the latter would not occupy the same position as under the old law in regard to his possessory rights, when lawfully in. I prefer to reserve any opinion on that point. But I agree that in the present case no such change of tenancy exists, and I concur with my brother Christiancy upon all the other matters which he has discussed.