Action for Use and Occupation.

ACTION FOR USE AND OCCUPATION.

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This action is grounded on stat. 11 Geo. 2, c. 19, s. 14, by which it is enacted that it shall be lawful for landlords, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, or hereditaments held or occupied by the defendants, in an action on the case for the use and occupation of what was so held or enjoyed; and if, on the trial of such action, any parol demise or any agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff shall not therefore be nonsuited, but may make use thereof as evidence of the quantum of damages to be recovered. But, the action of debt for rent on a contract for use and occupation lies at common law and not upon this statute. Egler v. Marsden, 5 Taunt. 25; Gibson v. Kirk, 1 Q. B. 850; and per Bramwell, B., in Churchward v. Ford, cited infra. It may be observed that since the abolition of real actions by stat. 3 & 4 Will. 4, c. 42, debt will lie for a rentcharge in fee. Thomas v. Sylvester, L. R., 8 Q. B. 368.

Plaintiff's title.] If the defendant has come in under the plaintiff or has acknowledged his title by the payment of rent to him or otherwise, he will not be permitted to impeach it at the trial; Syllivan v. Stradling, 2 Wils. 208; Cooke v. Loxley, 5 T. R. 4; Phipps v. Sculthorpe, 1 B. & A. 50; and it is not material in such case that the plaintiff should have the legal estate. Hull v. Vaughan, 6 Price, 157. Thus, if cestui que trust demises, he is the person to sue for the rent, and not the trustee, though the latter may have given notice to defendant to pay to him. Churchward v. Ford, 2 H. & N. 446; 26 L. J., Ex. 354. But, unless the defendant came in under the plaintiff, or had recognised his title, the plaintiff could only recover rent from the time that the legal estate vested in him. Cobb v. Carpenter, 2 Camp. 13, n. It seems, however, that since the J. Acts it is sufficient if the plaintiff has a right in equity to receive the rents as such. Tenants in common may join in this action on a parol yearly tenancy, if the tenant has always paid the rent to a joint agent of the plaintiffs; for this is evidence of a joint letting. Last v. Dinn, 28 L. J., Ex. 94. Where a party, after letting defendant into possession on an agreement for a future lease, mortgaged the premises to the plaintiff, who gave notice to the defendant of the mortgage, it was held that the plaintiff might recover in this form of action rent accruing due for a half-year subsequent to the mortgage, and during the currency of which the notice was given. Rawson v. Eicke, 7 Ad. & E. 451. A defendant, whose tenancy began under A., and who has since paid rent to the cestui que trust under A.'s will, cannot set up the want of the legal estate to an action for use and occupation by cestui que trust, though the fact is disclosed by the plaintiff's evidence. Dolby v. Iles, 11 Ad. & E. 335. The assignee of the landlord of A., who holds under a parol lease, may sue A. in this action, although there has been no recognition of tenancy or promise as between him and the assignee; at least where the grant by the assignor was "for himself and assigns." Standen v. Chrismas, 10 Q. B. 135. There is a distinction between the case where a person has actually received possession from one who has no title, and the case where he has merely attorned by mistake to one who has title; in the former case the tenant cannot, except under very special circumstances, dispute the title; in the latter he may. Per Bayley, J., in Cornish v. Searell, 8 B. & C. 475; Rogers v. Pitcher, 6 Taunt. 202; Gravenor v. Woodhouse, 1 Bing. 38; and see the cases cited post, sub tit. Replevin-Tenancy of plaintiff. Thus, where a tenant took premises from "A. and B., for and on behalf of the trustees of the joint estate of C. and D. ;" and it appeared at the trial, on the evidence of the plaintiffs (who described themselves in the declaration

as joint trustees), that they were trustees of C. only; it was held that the tenant was estopped from taking advantage of this variance. Fleming v. Gooding, 10 Bing. 549. So, where A. hired apartments by the year from B., and B. afterwards let the entire house to C., who sued A. for use and occupation, it was held that A. could not impeach C.'s title. Rennie v. Robin

son, 1 Bing. 147. But, a payment on a mistaken supposition that the claimant was personal representative of the tenant's deceased landlord will not estop the tenant. Knight v. Cox, 18 C. B. 645. And, where land, belonging to a parish, was occupied by A., and he paid rent to the churchwardens, who executed a lease of the same land for a term of years to B., and gave A. notice of the lease; in an action for use and occupation by B. against A., it was held that A. was not precluded from disputing B.'s title, for that B. could not derive a valid title from the churchwardens. Phillips v. Pearce, 5 B. & C. 433.

An estoppel must be mutual; therefore if the landlord is not estopped, neither is the tenant. Bac. Abr. Leases (9.); Brereton v. Evans, Cro. Eliz. 700. Thus, where a husband and wife joined in leasing, by deed, land to the defendant, of which the husband alone was seised, it was held that in an action of debt for rent, brought by the wife after her husband's death, the defendant was not estopped from showing that the plaintiff had no interest in the land, because the wife could not be estopped by the lease. Id. So, where husband and wife demised land, the legal estate of which was in trustees for the wife, it was held that the husband could not, after his wife's death, distrain for the subsequent rent, as there was no estoppel. Howe v. Scarrot, 4 H. & N. 723; 28 L. J., Ex. 325. It seems, however, that since the Married Women's Property Act, 1882, the wife would in such cases be estopped.

In general, the title of the plaintiff is established by the production of a writing or agreement, which is proved in the usual manner, &c. ; but if there be no actual lease or agreement, the plaintiff's title may be established by evidence of the defendant having paid rent to him, or submitted to a distress by him. Panton v. Jones, 3 Camp. 372. Notice to produce the receipts for rent, or the notice of distress, if any, should in such cases be given by the plaintiff. Where the defendant occupied the plaintiff's land under the powers of a local act, and, upon a dispute respecting the right of the plaintiff to demand rent, a decree for payment was made in an amicable suit in Chancery, in which the defendant acquiesced for several years, it was held that he could not afterwards dispute his liability to rent in an action for use and occupation. Allason v. Stark, 9 Ad. & E. 255. Payment of an annual sum by defendant and his predecessors, occupiers, to the overseers of the parish for a century, as for "rent of common lands," is evidence of a rent-service and not a rent-charge, especially if the defendant has his title deeds in court and declines to produce them. Hardon v. Hesketh, 4 H. & N. 175; 28 L. J., Ex. 137. See, however, Doe d. Whittick v. Johnson, Gow, 173, in which Holroyd, J., held that such payment is evidence only of a right to the rents, and not to the land, and that the presumption is that they were quit rents; this case was not cited in Hardon v. Hesketh, supra. If it appear from the plaintiff's witnesses that the defendant holds under a written agreement not produced, or which, when produced, cannot be read for want of a stamp, the plaintiff will not be allowed to give oral evidence of the holding. Brewer v. Palmer, 3 Esp. 213; Ramsbottom v. Mortley, 2 M. & S. 445. But, if the plaintiff has made out a prima facie case, and the defendant seeks to show that he holds under a written agreement, he must produce the instrument duly stamped, or his objection is untenable. Fielder v. Ray, 6 Bing. 332; R. v. Padstow, 4 B. & Ad. 208. A parol demise for all the residue of the lessor's term, it being the intention of the parties to create the relation of landlord and

Defendant's Occupation.

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tenant, will operate as a lease, so as to enable the lessor to maintain an action for use and occupation, or debt for rent. Poulteney v. Holmes, 1 Str. 405; Baker v. Gostling, 1 N. C. 19; Pollock v. Stacy, 9 Q. B. 1033. Such demise, however, operates as an assignment. Beardman v. Wilson, L. R., 4 C. P. 57. Where A. lets land to B. as tenant from year to year, and B. by deed assigns his interest in the land to C., and A. assigns his reversion to D., who does not accept C. as his tenant; D. cannot sue A. for the rent, there being no privity of estate or contract between them. Allcock v. Moorhouse, 9 Q. B. D., 366, C. A.

A married woman may, under the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 1 (2), sue alone, for the use and occupation of land to the rents of which she is, under sects. 1 (1), 2, 5 of that act, separately entitled. See post, Part III., Actions by married women.

Where the estate of the lessor determined by his death or any other cause, before or on the rent day, the tenant was not, at common law, liable to pay any rent for his occupation from the last rent day to the day of such cesser of his landlord's estate. This has been remedied by stat. 11 Geo. 2, c. 19, s. 15, extended by 4 & 5 Will. 4, c. 22, s. 1, in all cases where the lessor's estate ceases by his own death or that of another person, before or on the rent day; these sections enable the personal representatives of the lessor, or the lessor, as the case may be, to recover from the tenant a proportional part of such rent in respect of the time which elapsed since the last rent day. The Apportionment Act, 1870 (33 & 34 Vict. c. 35), seems not to affect the liability of the tenant; see sect. 4; notwithstanding the decision in Swansea Bank v. Thomas, 4 Ex. D. 94.

The stat. 14 & 15 Vict. c. 25, s. 1, enacts that where a lease or tenancy of any farm or lands held by a tenant at rack rent determines by the death or cesser of the estate of any landlord, entitled for his life or for any other uncertain interest, instead of claims to emblements, the tenant shall hold the lands under the succeeding owner on the same terms and conditions as he would have held the same of the previous landlord, till the end of the current year of tenancy, and shall then quit without notice; the succeeding owner may recover and receive a proportional part of the rent reserved for the time between the cesser of the previous landlord's estate and the tenant's quitting. As the privilege given to the tenant by this section is expressly given in lieu of his right to emblements, the section only applies to those tenancies in which the right to emblements would arise. Haines v. Welch, L. R., 4 C. P. 91. It applies to the tenancy of a cottage on a close containing more than an acre of land, which was partly cultivated as a garden and partly sown with corn and planted with potatoes. S. C.

Defendant's occupation.] There must be an occupation or holding actual or constructive; therefore a tenant who has agreed to take premises, but has not entered, is not liable to an action for use and occupation. Edge v. Strafford, 1 C. & J. 391; Lowe v. Ross, 5 Exch. 553; Towne v. D'Heinrich, 13 C. B. 892; 22 L. J., C. P. 219.

But, it is prima facie sufficient for the plaintiff to prove that the defendant did occupy the premises; and the continuance of the occupation will be presumed till the contrary appears. Harland v. Bromley, 1 Stark. 455; Ward v. Mason, 9 Price, 291. Where there has been an actual demise, a constructive occupation of the premises by the defendant during the time granted is sufficient; an occupation which he might have had, if he had not voluntarily abstained from it. Per Gibbs, C. J., Whitehead v. Clifford, 5 Taunt. 519; Pinero v. Judson, 6 Bing. 206; Atkins v. Humphrey, 2 C. B. 654, 659, per Cresswell, J. But, there does not appear to be any authority for the proposition that use and occupation can, in the absence of an actual demise, be maintained on a constructive occupation after the tenant has in

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act ceased to occupy, and has offered to surrender the premises to the landlord. As to what creates an actual demise, see Replerin-Tenancy of Plaintiff, post. Where there has been an actual demise to the defendant, to which he has assented, he is liable in debt for rent, even before entry. See Co. Litt. 270 a.; Bac. Abr. Leases (M.)

Where the defendant entered a house under an agreement to take it and pay a half-year's rent in advance, Lush, J., held that that sum was recoverable only on a special count on the agreement. Angell v. Randall, 16 L. T., N. S. 498. The assignee of the reversion cannot, as it seems, maintain this action for rent in part incurred before the assignment; for there was then no occupation of the plaintiff's property by his permission. Mortimer v. Preedy, 3 M. & W. 602; S. C., 6 Dowl. 544. An adverse occupation by the defendant will not entitle the owner to sue in this form of action. Tew v. Jones, 13 M. & W. 12. Indeed, the stat. 11 Geo. 2, c. 19, contemplates the relation of landlord and tenant. Hence, where a trespasser entered on land after a mortgage of it to the plaintiff, who had never taken possession nor got a judgment in ejectment, it was held that the latter could not recover rent in this form of action. Turner v. Cameron's Coal Co., 5 Exch. 932. But, a tenancy at sufferance is enough to support this action; as where a lessee under a lease from the plaintiff continues to hold adversely to him, after the expiration of it, as tenant to a stranger whose title is not shown. Bayley v. Bradley, 5 C. B. 396; Hellier v. Sillcox, 19 L. J., Q. B. 295. If A. agrees to let lands to B., who permits C. to occupy them, B. may be sued by A. for use and occupation. Bull v. Sibbs, 8 T. R. 327; Conolly v. Baxter, 2 Stark. 525. So, if B. assign all his interest in the premises to D., A. may maintain an action for use and occupation against B., provided A. has never recognised D. as his tenant. Shine v. Dillon, I. R., 1 C. L. 277, Ex. After an agreement between the plaintiff and defendant for a lease, the receipt by the defendant of the rents and profits, or an attornment from an under-tenant, is proof of use and occupation by the defendant. Neal v. Swind, 2 C. & J. 377. If the premises are in possession of an under-tenant, the landlord may refuse to accept the possession, and hold the original lessee liable during such time as the undertenant retains possession, for the lessor is entitled to receive the absolute possession at the end of the term. Harding v. Crethorn, 1 Esp. 57; Ibbs v. Richardson, 9 Ad. & E. 849; see Levy v. Lewis, 6 C. B., N. S. 766; 28 L. J., C. P. 304; 9 C. B., N. S. 872; 30 L. J., C. P. 141, Ex. Ch. ; Henderson v. Squire, L. R., 4 Q. B. 170. But, it may be proved that the lessor had accepted the under-tenant as his tenant, as by his having accepted the key from the original lessee, while the under-tenant was in possession by his acceptance of rent from him, or by some act tantamount to it. Harding v. Crethorn, supra, per Ld. Kenyon.

A tenant who has quitted in pursuance of an oral surrender to his landlord, without having given or received a notice to quit, remains liable; Mollett v. Brayne, 2 Camp. 104; Matthews v. Sawell, 8 Taunt. 270; or, after an insufficient notice to quit, although first acquiesced in by the landlord; Johnstone v. Hudlestone, 4 B. & C. 922; Bessell v. Landsberg, 7 Q. B. 638; even though the landlord, on the tenant's quitting, puts up a bill in the window for the purpose of getting another tenant for the premises. Redpath v. Roberts, 3 Esp. 225; Johnstone v. Hudlestone, supra. But, not so, if the landlord has, with the assent of the tenant, accepted another person as tenant, and he has entered, for this operates as a surrender in law of the first tenant's term. Thomas v. Cook, 2 B. & A. 119; Nickells v. Atherstone, 10 Q. B. 944. And, the operation of such acceptance as a surrender applies even where there was a lease under seal; Davison v. Gent, 1 H. & N. 744; 26 L. J., Ex. 122; and possession of the premises by the new tenant, and the fact of a new lease having been granted and the old

Defendant's Occupation.

307

one delivered up and cancelled, is evidence of the assent of the first tenant. S. C.; Walker v. Richardson, 2 M. & W. 882. If the landlord has accepted the key of the premises, this in itself is a surrender, and the acceptance of another tenant is immaterial; Dodd v. Acklom, 6 M. & Gr. 672; so, if after refusal of the key which the tenant leaves behind, the landlord makes use of it and enters the premises and puts up a board "to let." Phené v. Popplewell, 12 C. B., N. S. 334; 31 L. J., C. P. 235; see Lyon v. Reed, 13 M. & W. 285, and the notes to Ds. of Kingston's case, 2 Smith's Lead. Cases, 8th ed. 884, et seq. 66 Anything which amounts to an agreement, on the part of the tenant to abandon, and on the part of the landlord to resume, possession of the premises, amounts to a surrender by operation of law." Phéne v. Popplewell, per Erle, C. J., 12 C. B., N. S. 340; 31 L. J., C. P. 236. But, unless the landlord intend to resume possession, the fact that the key has been left with him, and he has tried to let the premises, does not constitute a surrender, and after he has let them there is no relation back beyond the time of letting. Oustler v. Henderson, 2 Q. B. D. 575. A., the tenant of a house, three cottages, and a stable and yard at an entire rent for a term of seven years, before the expiration of the term assigned all the premises to B. for the remainder of the term, the house and cottages being in the possession of under-tenants. The landlord accepted a sum of money as rent up to the day of the assignment, which was in the middle of a quarter. B. took possession of the stable and yard only. The occupiers of the cottages having left them after the assignment, and before the expiration of the term, the landlord relet them. A. paid no rent after the assignment, but the landlord received rent from the under-tenants. Before the expiration of the term the landlord advertised the whole of the premises to be let or sold. It was held that this was a surrender by operation of law of all the premises. Reeve v. Bird, 1 C. M. & R. 31; S. C. 4 Tyrw. 612. Where a tenant from year to year, at a rent payable half-yearly, quitted without giving notice to quit, and the landlord, before the expiration of the next half year, let the premises to another tenant; it was held that the landlord was not entitled to recover rent from the first tenant from the expiration of the current year when he quitted the premises to the time when the landlord relet the same to the second tenant. Hall v. Burgess, 5 B. & C. 332; and see Walls v. Atcheson, 3 Bing. 462. So, where rent is payable quarterly, if the tenant quits by consent in the middle of a quarter, the landlord cannot recover rent pro ratu, either for the subsequent portion of the quarter or for that part of it during which the tenant occupied. Whitehead v. Clifford, 5 Taunt. 518; Grimman v. Legge, 8 B. & C. 324. Where a tenant, whose lease expired on Lady Day, paid a quarter's rent, after deducting a sum for repairs, on Midsummer Day, and was not afterwards seen on the premises, and a third person afterwards came into possession, and paid rent at irregular periods, a jury may presume that the landlord has accepted the latter as his tenant. Woodcock v. Nuth, 8 Bing. 170. Although the premises are burnt down and remain unoccupied, the tenant still continues liable in this action for the rent subsequently accruing; for the premises continue to be "held" by the defendant; Baker v. Holtpaffell, 4 Taunt. 45; Izon v. Gorton, 5 N. C. 501; unless it be agreed that the liability shall cease after the fire; in which case the lessee will be liable, in use and occupation, for a proportion of the rent during the time of actual occupation. Packer v. Gibbins, 1 Q. B. 421. And the fact of the premises having been insured, and the landlord having received the insurance money and not applied it to reinstating the premises, affords no equitable defence to the action. Lofft v. Dennis, 1 E. & E. 474; 28 L. J., Q. B. 168. Under the old bankrupt acts it was held that an action for use and occupation lay against a lessee upon his agreement to pay rent during the