Bardsley v. Kaas

Per Curiam: It may be conceded, if one occupies the land of another by consent of the latter, without any agreement, that assumpsit for use and occupation will lie. Such, however, is not this case. Here the possession was taken and maintained under an express contract by which the appellant, in consideration of $8,000 to be paid therefor, agreed to convey to the vendee a certain house free and clear of all incumbrances, and title to be perfect. At the date of the agreement the vendee paid $500 and was at all times ready to pay the residue of the purchase money on a [593] ■deed being delivered to him according to the agreement. The vendor was not able to execute a deed according to his contract. 'These facts show that the vendee was not in possession under ■such circumstances as to create the relation of landlord and ten■ant. There was neither an express nor implied contract to pay rent, and no action could be maintained to recover for the use .-and occupation of the premises. Decree affirmed and appeal dismissed, at the costs of the appellant.