Mercer v. Mercer

12 Ga. 421

Opinion

By the Court.

Nisbet, J.

delivering the opinion.

[1.] Assumpsit for use and occupation lies generally upon a contract, either express or implied. A contract may be implied from the title of the plaintiff, and the occupation of the defendant. These being proven, a contract will be inferred. Chitty on Contracts, 373. 5 B. and Ald. 322. 3 N. and P. 40. 6 Ad. and El. 854, 8. C.

The plaintiff proved that his intestate claimed the land before his death; was in possession, and exercised acts of ownership over it; and that defendant held possession the year after his death. This was all the evidence before the Court, when plaintiff closed, and defendant moved a non-suit. It was not a case for a recovery in assumpsit, for use and occupation. No express contract for rent was proven, and none could be implied from the testimony. Had the plaintiff gone farther, and shown title to the premises, the case would have been different. The non-suit ought to have been awarded.

Let the judgment be reversed.