Tbe following opinion was filed May 24, 1910:
WiNslow, O. J.
This is an action to recover for tbe use and occupation of real estate. Tbe judgment seems to have been based on tbe ground that tbe city was a trespasser during its occupancy and that tbe plaintiff bas chosen to waive *232the tort and recover upon implied contract. The difficulty with this theory is that we can discover no trespass. The authorities are numerous to the effect that where, by the laches of the grantee, a grantor holds possession after his conveyance he holds as a tenant at sufferance. 1 Washb. Real Prop. (6th ed.) § 826; 18 Am. & Eng. Ency. of Law (2d ed.) 178, note 1, and authorities cited. It may be doubtful whether this would be so in Wisconsin since the decision of the cases of Meno v. Hœffel, 46 Wis. 282, 1 N. W. 31, and Eldred v. Sherman, 81 Wis. 182, 51 N. W. 441, which decide that a tenant holding over after his term does not become a tenant at sufferance unless the landlord expressly or impliedly admit that the relationship of landlord and tenant continues. It seems unnecessary to decide this question, however. The continued occupation of the property was not adverse to the grantee’s title, but in subordination thereto. Schwallback v. C., M. & St. P. R. Co. 69 Wis. 292, 34 N. W. 128; Riha v. Pelnar, 86 Wis. 408, 57 N. W. 51. Under such circumstances the grantor does not continue in possession as owner, but is estopped from denying his grantee’s title. And in McCormick v. Herndon, 86 Wis. 449, 56 N. W. 1097, it is said that he holds as tenant for his grantee and will be treated as holding the premises in subserviency to his grantee until he makes an explicit disclaimer of such relation. Under any theory, therefore, we can see no ground for holding that the city was a trespasser prior to a refusal to deliver possession on demand; hence there was no recovery justified on the ground that a tort had been committed. But we do not think the judgment should be reversed because the complaint is framed on the theory of a tort if the undisputed facts show a liability upon contract, so long as it appears that the parties have not been misled and the defendant has lost no rights.
Our statute provides that “any landlord may recover a reasonable satisfaction for the use and occupation of any lands or tenements by any person under any agreement not made *233by deed.” [Sec. 2196, Stats. 1898.] Tliis statute is in ■substance the same as sec. XIV, c. XIX, 11 Geo. II., which was originally passed to obviate an ironclad rule of the common law to the effect that there .could be no action in assump-sit for rent except upon express promise made at the time of the demise.
This statute was under consideration in Ackerman v. Lyman, 20 Wis. 454, which was an action for use and occupation of lands by one who was originally .a trespasser, and it was held that the action for use and occupation in this state rests on this section, and that the section requires that there must be an agreement, express or implied, and that it may be implied from the defendant’s entering into possession by permission of the plaintiff, or from acts showing the assent of the defendant after a tortious entry to hold under the permission of the plaintiff. It was in effect followed in De Pere Co. v. Reynen, 65 Wis. 271, 22 N. W. 761, 27 N. W. 155, where it was held that an action for use and occupation does not lie unless the relation of landlord and tenant exist between the parties. It is in harmony, also, with Preston v. Hawley, 101 N. Y. 586, 589, 5 N. E. 770, and with numerous cases cited in 2 Ency. Pl. & Pr. 1026, note 2. See, also, Keener, Quasi-Contracts, 191, 192.
There are no facts shown here from which an agreement to pay rent can be implied, even granting that the city could be bound by an implied contract in any event, a proposition which is, to say the least, doubtful. Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603; Appleton W. W. Co. v. Appleton, 132 Wis. 563, 113 N. W. 44. The conclusion is that there can be no recovery either upon the theory of tort or the theory of contract.
By the Court. — Judgment reversed, and action remanded with directions to dismiss the complaint.
The respondent moved for a rehearing or for a modifica*234tion of tbe judgment and mandate by changing tbe judgment of reversal to one of affirmance.
Eor tbe respondent there was a brief in support of tbe motion by Winkler, Flanders, Boltwm & Fawsett, and for tbe appellant a brief by Daniel W. I-Ioan, city attorney, and ,W. H. Timlin, Jr., special assistant city attorney.
Tbe motion was denied October 4, 1910.