Savings-Bank v. Getchell

A written acknowledgment of A, who is in the occupation of land, that he holds it as tenant of B, does not raise a presumption of law that he promises to pay rent, nor transfer from B to A the burden of proof on the question of fact whether they understand rent is to be paid. A promise to pay rent in such a case, implied from occupation and tenancy, is an inference of fact. Assumpsit, for use and occupation of land. The plaintiff, having a judgment on a mortgage of the land against one J. G., gave writ of possession for service to an officer, who, with an agent of the plaintiff, demanded possession of the defendant who occupied the land. The plaintiff’s evidence tended to prove that the defend■ant objected to giving possession because he was holding under a lease for three years from J. G., for which he had paid the rent in advance; and though his lease was after the mortgage, he claimed that the plaintiff’s security was ample, the rent of the other real •estate sufficient to pay the interest on the plaintiff’s debt, and that in justice he ought not to pay rent; that the plaintiff in part admitted this, but claimed the right to take possession, and to have rent paid, if the bank demanded the rent, from the first day of May, •especially if the land was redeemed by subsequent mortgagees, and the bank was made to account for rent; that after a good deal of talk, the agent and the defendant went to the defendant’s attorney, :and under a description of the land,- the defendant signed the folfowing: “ I acknowledge that I hold the above premises as tenant •of the Savings-Bank for the County of Strafford, without prejudice to my right to commence a bill in equity. May 1,1876;” that the •defendant has not commenced a bill in equity, and the plaintiff, March 23, 1877, conveyed by quitclaim deed its interest in the mortgage and lands described in it, and rent due, to one E. C. Eitz, who is the plaintiff in interest; and that he demanded the vent before suit, which the defendant refused to pay. Subject to the plaintiff’s exception, the defendant was allowed to give in evidence a lease of the real estate in question from J. G. to himself for three years, and to prove that he had paid the rent in -•advance; and to testify about the conversation and understanding that was entered into by the plaintiff’s agent and himself as to the payment of rent at the time the defendant signed the acknowledgment. The plaintiff had previously examined its agent as to the «ame, without objection, as a part of its case. The defendant’s evidence tended to show in substance that he •claimed, when the plaintiff demanded the possession, that it was unjust to require him to pay rent; that the plaintiff’s agent treated him kindly, and said that he could make no formal agreement that the defendant should not pay rent, but it might run along and «ee how it came out; that he made no agreement to pay rent, but told the agent that when the plaintiff demanded rent he must either pay rent from that time or go out; that he had no understanding that he was to pay rent from the first day of May, but that he was to pay from the time that the plaintiff should make a demand on him to do so, or go out. The plaintiff gave some evidence tending to show that, December 13,1876, the bank made a demand that rent .-should be paid, and the defendant in reply to this gave evidence tending to show that no demand was made, and if one was made, that the matter was discussed again, and the demand waived.

The court instructed the jury that they would find upon all the ■evidence in the case what the understanding and agreement of the parties wras as to the payment of rent by the defendant; that to make an agreement or an understanding, the minds of the parties must meet, should mutually assent that rent was or was not to be paid; that if the contract was that the defendant was to pay rent ■after a demand, he would not be liable unless a demand was made. The plaintiff requested the following instructions: It being proved and admitted that the defendant signed an agreement to become tbe tenant of the plaintiff, the defendant cannot show by parol that it was agreed, at the time of making the written contract, that he should not be liable to pay rent. The tenancy being proved to exist, the law implies an agreement that he should pay a reasonable rent, and he is liable to pay rent unless it appears that it was agreed that he should not be liable to pay rent. The agreement of the defendant to become tenant is prima, facie evidence of an ■agreement to pay a reasonable rent for the use of the premises. These instructions the court declined to give : and to those given, and the refusal to give those requested, the plaintiff excepted. Verdict for the defendant.