Burdin v. Ordway

Bent. Assumpsit. Where the relation of landlord and tenant does not exist, the law will not imply assumpsit for rent or use and occupation; Title to land cannot he tried in assumpsit.

On report. This was an action of assumpsit .for rent of a house. Plea, general issue, and a brief statement denying that the title to the premises was in the plaintiff, and alleging it to be in one Thompson. The plaintiff claimed title to one-fourth as heir of his father and by release of the other three-fourths from his-sister, being the other heirs. The brief statement alleged that the title to the premises was formerly in one Hook who conveyed the same to one Mason in mortgage, which was foreclosed by the mortgagee, and thereafter conveyed to Thompson. The testimony tended to show that the plaintiff’s father exchanged lots with one Hook but did not take a deed. He moved a house upon the lot and occupied it several years ; that when he moved out the defendant moved in under a verbal lease. After his father’s death, the plaintiff' demanded rent of the defendant, who on several occasions sought to purchase the premises of the plaintiff. The plaintiff claimed that he was entitled to recover in this action, relying upon ownership as sufficiently proved by the parol conveyance in place of a deed, and a judgment against Hook, recovered by his father, in an action of forcible entry and detainer.