Smith v. Stewart

Where there is si contract for the purchase of land under which the purchaser enters into possession, but afterwards refuses to complete the purchase ; the vendor cannot maintain an action of assumpsit against him for ■use and occupation, but must resort to an action of trespass and ejectment, to recover the mesne^profits.

THIS was an action, for the use and occupation of SO. acres of land, in Kingsbury. The cause was tried at the Washington circuit, in June, 1809, before Mr. Ch. J. Kent. At the trial, Zina Hitchcock, the only witness for the plaintiff, testified, that he was the agent of Joseph Smith, the owner of the land, who resided in England., and father of the plaintiff; about 14 years ago, the defendant applied to the witness to purchase the land, and was informed that Joseph Smith was dead; but the witness agreed to sell the land to the defendant at S dollars per acre, and to give him a deed as soon as he should receive a power of attorney from the plaintiff; and the defendant, with the consent of the witness, took possession of the land, and has continued in possession ever since. At the time of the agreement for the purchase, the land was uncultivated ; but has since been improved, and rendered more valuable. The witness received a power from the plaintiff, and offered to the defendant to execute a deed ; and the defendant, from time to time, promised to pay the money, until the autumn of 1808, when he refused. The chief justice inquired of the plaintiff’s counsel, whether he could show any other agreement between the parties, except that for the purchase of the land.; and being answered, in the negative, he nonsuited the plaintiff., A motion was made to set aside the nonsuit.