¶1If Kent might have maintained assumpsit for use and occupation, in case he had continued to be the owner and the defendant had failed to fulfil the contract, and thus a relation of landlord and tenant exist for that purpose, it would be doubtful whether that relation existed between them within the statute giving the remedy sought in this case. There would be no rent payable, which, being in arrear, the landlord might give notice under the statute.
¶2*129But however that might ho, this plaintiff does not stand in the relation of landlord to the defendant. He came in in invitum, by his levy against Kent, and the defendant’s possession was adverse to the plaintiff’s claim, and he never recognized the plaintiff as having title. On the facts, therefore, the plaintiff cannot maintain the process. 6 N. H. Rep. 298, Wiggin vs. Wiggin ; 9 N. H. Rep. 496, 498, Alton vs. Pickering; Leavitt vs. Wallace, [12 N. H. Rep. 490 ;] Hovey vs. Blanchard, [13 N. H. Rep. 145.]
¶3Verdict set aside.