Mariner v. Burton

Decided July 1, 1843

Superior Court of Delaware · decided 1843-07-01

Narr. in assumpsit for use and occupation. Pleas non assumpsit, See. In 1836, Coard Button contracted to sell Philip W. Mariner a house and lot for $60, and delivered possession; the deed to be made on payment of the purchase money. Philip Mariner died, and his representatives refused to pay the purchase money; but agreed to rescind the contract. Burton brought an action of ejectment and recovered the land; and brought this action for use and occupation.

Decided 1843-07-01

The Court.

¶1—There is nothing in the case, as proved, from which a promise can be implied to pay rent. The relation of landlord and tenant never existed between Burton and Mariner; nor was there any contract for the rent of the premises. The latter took possession as vendee and owner; the contract of sale was broken up, whether with or without his consent, without placing him in the relation of a tenant, or as holding by permission of Burton. On the contrary, Burton treated him as a trespasser, and turned him out by an action of ejectment.

¶2Our act of assembly is the same with the statute of Geo. 2., its object being to give the action for use and occupation in cases of tenancy without demise by deed; but still, only in cases of tenancy or holding by permission of another under a contract, express or implied, to pay rent. Such is not this case, and the plaintiff below must be nonsuited.