Hedgepeth v. . Rose

Sjixth, C. J. We entirely concur in the ruling of the Court, that the defendant should only be charged for use and occupa *44 tion from and after his refusal to surrender possession, when it became tortious and adversary. There can be a legal claim for the use and occupation of land when there has been a contract, express, or implied from the circumstances, to pay therefor, or a wrongful withholding, and the recovery, while in some cases measured upon the basis of a rental compensation to the owner, of damages therefor. When the possession is permissive and is taken under the mutual understanding of parties that it is gratuitous, no implied contract can arise, and the gratuity cannot afterwards, at the will of one who bestows it, be converted into a debt. It remains what both intended it should be, when no change in their relation has been subsequently made. “ A contract, express or implied, executed or executory,” say the Court in Prince v. McRae, 84 N. C., 674, “ results from the concurrence of minds of two or more persons, and its legal consequences are not dependent upon the impressions or understanding of one alone of the parties to it.” “To constitute any contract,” in the words of Ruffin, J., delivering the opinion in Bailey v. Rutjes, 86 N. C., 517, “ there must be a proposal by one party and an acceptance by the other, resulting in an obligation resting upon one or both ; or, in other words, there must be a promise.” Not only is there no misconception here on the part of the plaintiff, but it is manifest, both himself and the defendant considered the entry and occupation to be gratuitous and without charge. When the defendant took possession, it is admitted, and so the case states, that “there was no requirement or expectation on the part of the plaintiff that his son-in-law, the defendant, should pay him rent, and nothing was ever said about rents or improvements until September, 1882.” Upon what reasonable gi’ounds the appellant puts his claim to remuneration for the use of the premises for the antecedent period, we are unable to see. But our own reports furnish a pre *45 cedent.in Baker v. Carson 1 D. & B. Eq., 381, called to our attention in the brief of the appellee’s counsel. The facts in this ease are essentially those now before the Court. The defendant was the owner of a life estate in lands, which after his death were devised in fee to the children of herself and husband, the testator. The plaintiff, of whom the wife was one of the devisees in remainder, residing several miles distant, was induced, by the defendant’s anxious requests and promise, to release her life estate to her daughter, to remove to and settle upon uncleared land thus devised, the defendant proposing that upon a division, the improved part should be assigned to her said daughter. This was done and the premises greatly improved. The defendant, after several years’ occupancy, refused to convey, and upon some disagreement, brought on action to recover possession. in consequence, the bill was filed praying for a conveyance of the life estate, or an injunction, unless payment was made for improvements. The defence was the act of 1819, avoiding parol contracts for the sale of land. The Court directed the Clerk and Master to inquire and report the additional value conferred on the defendant’s life estate by the plaintiff’s labor and expenditures, and the reasonable value of the use of the land “since the 1st of January, 1831, when possession was required to be surrendered,” as an adjustment of the equities subsisting between them. The case is not analogous to one in which a person enters into possession of land under a parol contract of purchase which is afterwards repudiated by the vendor. In such case, the transaction is a nullity, and the parties are put in statu quo, as far as may be, as if no agreement had been made. But the defendant’s possession, up to demand for its restoration, was not a nullity, but rightful and legal, and as no compensation was to be given for the use, it cannot now be required. The sole question presented upon the appeal is, whether the defendant should be made liable for rent previous to September, 1882, and our ruling that he should not be, is confined to that *46 single point. Nor in our opinion does the act of 1871-’72, [The Code, §473, et seq.), affect the mutual rights of the present parties. It provides a remedy for a different class of cases. There is no error and the judgment must be affirmed. No error. Affirmed.