COBB V. KIDD.
Septemtlii 7, 1881.')
AGREEMENT TO P ' , A new trial not be on the ground of misdirection of tbe jUry,' where, in anaetion brought by tenants in commop. jointly, but continued by the survivor after suggesting on the record the death oitha other, to recover; worth, the what theut\e and occupation of certain premise!! were jury' were instructed that tpe plaintifi was entitled to recover, if they found that the defendant remained in occupation under an implied agreement to pat . rent; and that m agreement to pay rent lVould be implied, if the' defendant occtWied. the premises by the..lessors' permission., without any under,tanding .that such occupation should be without compensation. . .',',
:Benedict, Taft for pla.intifi. O. Bainbridge Smith, for defendant. . 'WA.14LACE, .D. J. The plaintiff h.aving o.bt,ai;Q.ed lit verdict upon the kial,. the defendant now mQves for a new trial.: , The MtiOn. is for use and occupation of ,certain'premises in the Ne.w York·. The defendant originllolly.entered into possession, un<ler leases executed, severally by the two tenl),n,ts,. common, whO. were of the 'premises. After the leases; expired, ·by. agreement with the tenants in common .llowed to August 1, 1875"at&speeified rent. The evidence authorized the jury to find that, by the joint the lessors, the defendant was allowed· t,o cOll;tjuP-ejnthe. further occupation of the premises, without paying allY rent,'unti(Angul3t 1(), 1875; and after that time, until the middle of October, though the lessors desired possession of the premises an,d wil;,hed themvaeated as soon as practicable, they acquiesced in the defendant's occupatiop of them for the accommodation of the defendant. After the suit was one of the lessors died, and this fact was suggested in the record upon the trial, and the action continued in the name of the survivor. . n;structed that the plaintiff was entitled to recover The jury for use and occupation after August 15, 187i>,if they found that the defendant remained in occupation of the premises under an implied to pay rent. ,They were also instructed a.n agreement to pay rent would be .implied if the defendant occupied by the ,permission of the lessors and there was no understanding that such occupation should· be withoutcorQpensation. It is insisted .that thefl6. instruptions were hhQ plaitltiff, as more. than his of. th6
damages; and that the conventional relation of landlord and tenant did not exist between the parties, and therefore there can be no recovery for use and occupation. These objections to the recovery are not well taken. It is elementary that whenever, in actions ex contractu, one or more of several parties having a joint legal interest dies, the action can only ,be maintained by the survivor. The original plaintiffs not only could but probably were required to sue jointly. 1 Chit. PI. 12;1)ecker v. Livingston, 15 Johns. 479; Hill v. Gibbs, QHill, 56; 8hermanv. Ballou, 8 Cow. 304. When there is a joint demise by tenants in common and an entire is reserved, the action is properly brought by the lessors j'6intly; and when there has been no express contract for the letting of the premises, tenants in common may join in an action for use and occupation. Porter v. Bleiler, 17 Barb. 149. Undoubtedly, the actIon for use and occupation only lies where the relation of landlord and tenant exists; but, as is stated in Taylor's Landlord and Tenant,§ 655, "it is not necessary for the plaintiff to prove an express contract with the tenant when he took possession, or any particular reservation of rent, nor that the tenant has once paid to that effect will be implied in all cases rent; for an where a permissive holding is established," InOarpenter v. U. 8.17 Wall. 489, Mr. Justice Strong, delivering the opinion of the court, says, (p. 493:)
"When the defendant has entered and occupied by permission of the plaintiff without any express contract, the law implies a promise on his part to make compensation or pay a reasonable rent for his occupation."
The instructions to the jury were correct, and the motion for a new trial is denied.
(Oircuit Oourt, D. OoZorado. September, 1880.)
TITLE BONDS-NUDUM: PACTUM-BILL FOR SPECIFIC PERFORMANCE.
Where a bill for specific performance was brought, based upon a title bond whereby the obligors bound themselves to convey certain property to the upon certain payments being made, held, that such a bond could not be enforced for want of consideration.
The complaint was a bill for specific performance, based upon a title bond executed by three of the defendants to the complainants, in pursuapce of which they bound themselves to convey three·fifths