Sampson v. Shaeffer

Wells, Justice, delivered the opinion of the court. Heydenfeldt, Justice, concurred.

The action ir. the court below, was brought to recover $1400, for the alleged ise and occupation of certain premises in Marysville, by the defendant, “at his request, and by the permission of the plaintiff," iron March 1, 1851, to May, 1852. The defendant in his answer denies all indebtedness for the alleged use and occupation by him of the premises, and denied that he used and occupied them by tie permission of the plaintiff.

The legality of tie plaintiff’s title is not in issue. The plaintiff could not prevál upon it in this action, if it were valid; neither could the dtfendant dispose of it, if it were not; and whether it belongs to one or the other could not be tried in an action to recover red; for use and occupation. “Indebitatus assumpsit for rent, wih not lie in favor of a stranger for the purpose of trying his title; or by one of two litigant parties claiming the land: this actim depending not upon the validity of the plaintiff’s title, but on acontract, express or implied.” So it was [202]expressly said in Boston v. Brinley, 11 Pickering, 1, and Codman v. 14 Mass. R. 96, and the rule is sustained by cases there cited. The plaintiff alleges a contract, express or implied, by the averment that the use and occupation of the lot in question, by the defendant, was “ at the request of the defendant and by the permission of the plaintiff,” and having thus alleged a contract, he can only succeed by establishing one. The use and occupation of the land claimed by plaintiff creates a presumption of a contract; the defendant may rebut this presumption Try proof that the possession was adverse: this case does not depeml, therefore, upon the question, whether the claim of the plaintif, as heir of John Sampson, deceased, was sufficiently established, or whether the decree of the probate court was conclusive, <¡r whether there were other heirs, nor will it turn upon the objection raised of a defect of parties: that objection not having been taken by the answer, it must be deemed to have been waive!, and could not be raised upon the trial. Practice Act, Title IV s. 45.

The correctness of the judgment is involved in fhe other propositions advanced by the appellant, and the question we now propose to examine is, whether the plaintiff car recover upon mere occupancy without permission of the plaintff, and against his will ?

The record discloses, that the defendant ard one Hall took possession of the lot in controversy in Feb., B50, and that defendant has been in possession ever since; Hdl having sold out his interest to him in May, 1851. The plairtiff endeavored to show ‘a tenancy existing on the part of the deendant under John Sampson, who, it is said, became proprietor jf the land in 1849, and who died in September, 1850; conflictiig testimony was introduced upon this point, but whether the weight of it went to sustain this position or not, it is no part of our present purpose to say, as that was within the province of the jury, and should have been left to them to decide; the fací however, was controverted by the defendant. The plaintiff chimed to be the rightful heir of the estate of John Sampson, and h appears from the evidence of his own witnesses, that he attenpted to oust the defendant from the premises by legal proceedngs in May, 1851. It appeared further, that there had been corsiderable litigation be-