Kline v. Jacobs

• Decision Date: 13 March 1871
• Citation: 68 Pa. 57
• Parties: Kline <I>versus</I> Jacobs and Wife.
• Court: Pennsylvania Supreme Court

Page 57

68 Pa. 57

Kline versus Jacobs and Wife.

Supreme Court of Pennsylvania.

March 1, 1871.

March 13, 1871.

March 1st 1871.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., at Nisi Prius

Error to the District Court of Philadelphia: No 292, to January Term 1870 W. L. Hirst, for plaintiff in error.

J. C. Longstreth, for defendants in error.—Action for use and occupation lies wherever the demise is not by deed: Stat. 11 Geo. 2, cap. xix., sect. 24; Roberts' Dig. 237. It lies where the relation of landlord and tenant subsists on an agreement express or implied: Taylor on Landlord and Tenant, sect. 636; Day v. Tomlinson, 5 J. B. Moore 558.

The opinion of the court was delivered, March 13th 1871, by SHARSWOOD, J.

At common law one tenant in common could maintain an action of account against his companion only in the case where he had expressly constituted him his bailiff of his part: Co. Litt. 200, b. The statute of 4 Anne, c. 16, s. 27, Roberts' Dig. 48, introduced an amendment of the law in this respect by allowing the action against the co-tenant "as bailiff for receiving more than comes to his just share or proportion," without proof of an express contract. But neither at common law nor under any statute could assumpsit for use and occupation be maintained upon the mere occupation, though it might be shown to be permissive. Each tenant has an equal right to the possession of the whole, and without an express contract to pay rent, account was the only remedy under the statute of Anne. The statute of 11 Geo. II., c. 19, s. 14, Roberts' Dig. 237, provides that "it shall and may be lawful to and for the landlord or landlords when the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements or hereditaments, held or occupied by the defendant or defendants, in an action on the case for the use and occupation of what was held or enjoyed; and if in evidence on the trial of such action, any parol demise or any agreement (not being by deed) whereon a certain rent was received, shall appear, the plaintiff in such action shall not thereupon be nonsuited, but may make use thereof as evidence of the quantum of the damages to be recovered." This section of the statute is reported by the judges as in force in this state: 3 Binn. 626. It is recognised also in Pott v. Lesher, 1 Yeates 578, and Henwood v. Cheeseman, 3 S. & R. 500. "Under the statute," as is said by Lord C. J. Eyre, in Naish v. Tatloch, 2 Hen. Bl. 323, "a landlord who has rent owing to him is allowed to recover, not the rent but an equivalent for the rent, a reasonable satisfaction for the use and occupation of the premises, which have been holden and enjoyed under the demise, by the action for the use and occupation, and it is provided on his behalf, that if the demise be produced against him, it shall not defeat his action as it would have done before the statute, but the fixed rent shall only be used as a medium, by which the uncertain damages to be recovered in this form of action shall be liquidated." Had the action in this case in the court below been between strangers and not tenants in common, there...