Mercer v. Mercer

Supreme Court of Georgia

Mercer v. Mercer

12 Ga. 421

CourtSupreme Court of Georgia

DecidedJanuary 15, 1853

DocketNo. 66

StatusPublished

Cited by5 cases

This text of 12 Ga. 421 (Mercer v. Mercer) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mercer v. Mercer, 12 Ga. 421 (Ga. 1853).

Pincite

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 [422]*422over 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.

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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 [422]*422over 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.

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Bluebook (online)

12 Ga. 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercer-v-mercer-ga-1853.

Opinion

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