Pendergast v. Young
21 N.H. 234
Superior Court of New Hampshir...
1850
Check Treatment
Perley, J.

To maintain an action of assumpsit for the use and occupation of land, the plaintiff must show a contract, express or implied. Here was no express contract, and none can be implied in law, unless the plaintiff’s intestate, during the occupation of the defendant, had such title to the land as gave him the right to the possession. Without such right, he could not legally give the defendant permission to occupy.

The lease to A. Pike was for one year, from the first day of May, and the occupation of the defendant, for which this suit is brought, was from the same first day of May to the 9th of June following. If this lease to A. Pike was operative upon all the land demised, .the intestate had parted with his right to the possession during the time for which this claim is made. As A. Pike was lawfully in possession of part of the premises at the time of the lease to him, his remaining in possession was equiva*236lent to an entry into that part. To complete the title of lessee for years and give him the legal possession of his term, the law required an entry into the demised premises, upon the ground that, until his entry, he could not be presumed to have assented to the lease, that might be burdened with rents or conditions to which he would not agree. Bacon’s Ab. tit. Lease and Terms for Years, (m); Miller v. Green, 8 Bing. 92. But the lessee could not enter into part of the land, the contract and conveyance being entire, without binding himself by a general assent to the lease ; and such entry into part, provided the lessor had title to the whole, would give the lease operation upon the whole land. The lessee would be bound on his covenant to pay the whole rent, and would be entitled to the use and occupation of the whole land. The possession by a stranger, without title, of the part not entered on by the lessee, would not affect his liabilities or his rights. If the lessee is prevented from occupying, by a tenant whose lease has expired, he can maintain no action against his lessor on his covenant for quiet enjoyment, but must pursue his remedy against the tenant who holds over. Gardner v. Kettletas, 3 Hill, 330. If, therefore, the possession of the defendant is to be considered as wholly tortious, the wrong was done to A. Bike, who had the right of possession under his lease, and not to the intestate, who had parted with that right, and could not maintain trespass against the defendant. He could not waive a tort for the purpose of adopting another remedy, because no wrong had been done to him ; and there is nothing in the facts found,by the case that called on the court to give the instructions moved for by the plaintiff.

On the other view of the case, if the defendant is to be regarded as tenant by sufferance, and owed a rent for his occupation, he owed it, not to the intestate, but to A. Bike, his lessee, by whose sufferance and permission he must be understood to have occupied. No attornment was necessary to entitle Bike to the rent. The principle of the Statute, 4 Anne, ch. 16, § 9, must be understood to have been adopted in this State. Indeed, the whole doctrine of attornments grew out of the peculiar policy of' the feudal law, and never could have been consistent with the *237spirit of our government and political institutions. Butler on. Co. Lit. 325 a, note 278; Burden v. Thayer, 3 Met. 76; Cavis v. M’ Clary, 5 N. H. Rep. 529; Standen v. Christmas, 10 Ad. & Ellis, N. S., 135.

Judgment on the Verdict.