By the Court. —
Lyon, J.,
delivering the opinion.
The demurrer to the plea was properly overruled in this case, not on the ground relied on, that there had been a former recovery by the plaintiffs against others for the same cause of action, which is the foundation of this suit; but because the plea shows that the possession of the premises, by the defendant, for which this action of use and occupation is brought, was adverse to the title of the plaintiff; and for that the action does not lie. “The relation of landlord and *585tenant is necessary to sustain such an action.” — Barnes & Shinholster, 14 Geo. 133. In other words, the action depends entirely upon a contract, either express or implied — • express' where the parties have stipulated for the payment of rent, or implied when a contract is presumed from the title of the one and the possession of the other; this presumption of a contract is rebutted when it appears that the tenant does not hold under, but adversely to him who holds the title. During the time the defendant had the possession of the premises, for which this action is brought, an action of ejectment was pending at the instance of the plaintiff against the persons under whom defendant held, there could not then have been a contract, either expressed or implied, between these parties for the use and occupation. The relation of landlord and tenant did not exist and the suit can not be maintained. In Birch vs. Wright, 1 Q. R. 378, the same being an action for use and occupation, Ashurst, J., says: From the 6th of April, 1785, to the time of recovering in the action of ejectment, in my opinion the plaintiff is precluded from recovery in this form of action, for that would be blowing both hot and cold at the same time by treating the possession of the defendant as that of a trespasser and that of a lawful tenant at the same time. The plaintiff can not first recover in ejectment and then for use and occupation for the time subsequent to the day of the demise in such ejectment.
“The rule that an undisclosed principal shall stand liable for the contract of his agent does not apply when the contract is under seal. Accordingly, a lease under seal, executed by an agent as lessee in his individual name, and which does not purport to be executed on behalf of the principal, is not binding upon the latter, although it appears from extrinsic evidence that the lessee was the general agent to conduct a business for his principal, and that the premises were leased to be used in such business. Where, during the continuance of the term under such lease, the premises were used by the principal, or by his agent as manager in operating the business, an action for use and occupation could not be maintained against the principal.” Lenney v. Finley, 118 Ga. 718 (2, 3), 720, and cases cited.
JUDGMENT.
■Whereupon, it. is considered and adjudged by the Court, that the judgment of the Court below be affirmed.