delivering the opinion.
The action for use and occupation will not lie in this case.
It is argued, that in order to maintain this action, two things only are necessary to be proven, to-wit: Title in the plaintiff and possession by defendant. And while it is true that a contract to pay rent may be implied from these data, yet, if it shall affirmatively appear, as it does in this case, that the tenant disclaims holding under the plaintiffs, no such presumption can arise.
It would be absurd to imply that A agrees to pay B rent for the land he lives on, when A most stoutly denies it is B’s land. And such, we understand, is the well-settled doctrine of the books upon this subject; and in conformity thereto have been the rulings of this Court.