Smith v. Stewart
6 Johns. 46
N.Y. Sup. Ct.
1810
Check Treatment
Per Curiam.

At common law, no action qf assumpsit for rent would lie, except upon an express promise, made at the time of the demise. (Johnson v. May, 3 Lev. 150. Bull. N. P. 138.) The present action is given by the stat. of 11 Geo. II. c. 19. § 14. which we have adopted. (Laws, vol. 1. 146.) But this statute, from the terms of it, seems to apply only to the case of a demise, and where *49there exists the relation of landlord and tenant, founded on ” some agreement creating that relation. So are the precedents. (2 H. Black. 319.) Here the defendant did not enter under such a relation, but under a contract for a deed. He, therefore, entered under a colour of title which might have been enforced in equity. He finally refused to perform the contract, and changed himself into a trespasser •, and the better opinion is, notwithstanding the case of Hearn and Tomlin, (Peake's N. P. 192.) that he never was strictly a tenant, and never entitled to notice to quit, nor liable to distress, or to an action of assumpsit for rent. He is liable in another way, to be turned out, as a trespasser, and is responsible, in that character, for the mesne profits. The motion to set aside the nonsuit is therefore denied.

Judgment of nonsuit.