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
SMITH V. REYNOLDS.
of the "Terrible Mine" to the plaintiffs, upon the payment of certain sums therein named, within a specified time. Before the expiration of the time the said three defendants had sold and conveyed the property to John H. Maugham, and he had conveyed to A. E. Reynolds. Reynolds set up in his answer that the title bond was given without consideration. The complainants excepted to this portion of Reynolds' answer. HALLETT, D. J. As to the exception to the separate answer of Reynolds, alleging that the bond executed by three of the defendants to the plaintiffs was a voluntary bond, executed without any consideration, in my opinion it is not well taken. This exception must be overruled. Such bonds are of no force or effect whatever, unless carried out by the obligees tendering the whole, or some part, of the agreed price, and the obligors accepting the same. To say that such a bond is capable of being enforced is to assert that one party is bound, while the other is not. If the purchaser is not bound, neither is the vendor. It is not the case of a contract founded upon mutual promises, which is always enforceable. When there is Ii promise to sell, hut no promise to huy, there is no contract. It is a promise without consideration. Of course, if the seller, when it is still within his power to sell, accepts the money, or some part of it, he is bound to make the conveyance; or, if the consideration be that the obligee shall sink a shaft until mineral is struck, or that he shall do other work on the mine, the case would be different.. In that event there would be no want of mutnality. It would be the case of an ordinary agreement, based upon a consideration. But in the case before us the plaintiffs did not agree to take the property. Is it possible that Clark, Patton, and Ottman were bound to sell, while DOWDS and Smith were not bound to buy? This I do not nnderstand to be the law. I have always regarded this class of bonds as being without validity. I know there are some good lawyers who maintain that such a bond may be treated as a continuing offer during the time limited therein, and that the offer may be accepted at any time during that period. But this is not my view of the law. Mr. Thomas stated that he could furnish some authorities which lay down a different doctrine. I now think this part of the answer presents a good defence. At the final hearing, upon a more extended examination of the authorities, my views may be modified, but as at present advised my conviction is that this bond is without validity.
FEDERAL REPORTER. DOWELL v. ApPLEGATE and others.
((Jircuit Court, D. Oregon. :September 9, 1881.) .
After It demurrer to a bill is allowed, the right to nm(>n,l .of the court, and leave to amend will not be g:rameu or attain the ends of justice in the case. 4.
CASE IN JUDGMl£NT.
in the discretion IS necessary to
Suit inEquity "in aid of Execution." Addison G. Gibbs 'and B. F. Dowell, for plaintiff. W. Gary Johnson, for defendants. DEADY, J. On' Jime 24, 1881,WiIIiam H. H. Applegate conveyed to Charles and John O. Drain 200 acres of land in Douglas county, by a deed in which the sum of $500 waS named as the consideration, having a stamp thereon of the value of 50 cents. Among other things, this suit is brought to set aside this' conveyance as void,because it was not stamped for $2,000, the alleged actual consideration thf'reof,so as to subject the property described therein to the satisfaction of a judgment for the plairltiff against the defendant Jesse Applegate, upon the ground. that J. A. had conveyed the same to his son W. H. H. A. with intent to defraud the plaintiff. On July 8, 1881, a demurrer to the bill by the Drains was Rustained on the 'ground that it did not appear therefrom that the grautor had omitted to stamp the deed sufficiently with intent to defraud the revenue of the United States. The plaintiff now moves for leave to amend his bill in this respect, and the defendants object because the plaintiff, as to them, is seeking practically to enforce a forfeiture upon purely technical grounds against innocent purchasers, and therefore ought not to be favored by a court of equity, and because it does not appear but.