Smith v. Stewart

6 Johns. 46

Opinion

Per Curiam.

At common law, no action qf assumpsit for rent would lie, except upon an express promise, made at the time of the demise. (Johnson v. May, 3 Lev. 150. Bull. N. P. 138.) The present action is given by the stat. of 11 Geo. II. c. 19. § 14. which we have adopted. (Laws, vol. 1. 146.) But this statute, from the terms of it, seems to apply only to the case of a demise, and where there exists the relation of landlord and tenant, founded on ” some agreement creating that relation. So are the precedents. (2 H. Black. 319.) Here the defendant did not enter under such a relation, but under a contract for a deed. He, therefore, entered under a colour of title which might have been enforced in equity. He finally refused to perform the contract, and changed himself into a trespasser •, and the better opinion is, notwithstanding the case of Hearn and Tomlin, (Peake's N. P. 192.) that he never was strictly a tenant, and never entitled to notice to quit, nor liable to distress, or to an action of assumpsit for rent. He is liable in another way, to be turned out, as a trespasser, and is responsible, in that character, for the mesne profits. The motion to set aside the nonsuit is therefore denied.

Judgment of nonsuit.