
    *Eppes’s Executors v. Cole and Wife.
    Argued at the April Term, 1809.
    [4 Am. Dec. 512.]
    1. Assumpsit — Use and Occupation of Land — Express Promise. — Assumpsit for use and occupation of land, by permission and assent of tbe plaintiff, on an express promise to pay tbe plaintiff a certain sum, or, in general terms, to pay him to his satisfaction for such use and occupation, lies at common law, independently of the stat. 11, Geo. II, c. 19.
    2. Same — Same—Implied Promise. — It seems, that such action is also maintainable without proof of an express promise. But the point was left open in this case. Idem qurnre?
    Assumpsit brought by John Cole and Rebecca his wife (late widow of Hamlin Eppes, deceased) against Peter Eppes, in the District Court of Petersburgh.
    The .declaration contained three counts; 1st. For use and occupation, for 19 years, of 252 acres of land, which were, at the time of such occupation, the property of the plaintiff’s wife, who was then a feme sole, laying the promise to the plaintiffs; 2d. Quantum valebat, for use and occupation, for 19 years, of another plantation, containing the same number of acres, (being the dower land of the said Rebecca,) by permission of plaintiff Rebecca before the marriage, and of plaintiff John since; 3d. That, in consideration that defendant had the use and occupation of 252 acres of land (being the dower land, as aforesaid) for 19 years, by the permission and assent of plaintiff Rebecca, before the marriage, and of plaintiff John since, defendant assumed to pay them to their satisfaction. Plea, non assumpit; and issue.
    At the trial, the defendant demurred to the evidence, which proved, that, in June, 1787, a conversation passed between John Cole, the plaintiff, and Peter Eppes, the defendant, wherein the plaintiff told the defendant, ‘ ‘Col. Eppes, you have greatly deceived me, as to the thirds of that land:” the defendant replied, that he had; but that he had written to his brother concerning the business, and had got his answer, and that it should be settled directly; and you (meaning the plaintiff) shall be paid therefor to your satisfaction.” It was further proved, “that Hamlin Eppes, the former husband of the plaintiff Rebecca, and under whom the plaintiffs claim, died in the month of June, 1774; that the defendant was then in possession, *to wit. in 1787 and had been ever since the year 1774, before the death of Hamlin Eppes, of the land, to one-third of which, as dower, to wit, 252 acres, the plaintiffs were entitled in right of the plaintiff Rebecca, until the year 1794, when dower was assigned the plaintiffs, by a decree of Rinwiddie County Court in Chancery.” It was further proved, “that the said land was worth at least fifteen pounds per annum; and this being all the evidence introduced by the plaintiffs,” the defendant demurred. A conditional verdict was found for 2851. damages.
    The demurrer being argued, the District Court gave judgment for the plaintiffs; from which the defendant appealed; and having afterwards died, the appeal was revived by his executors.
    George K. Taylor and Robertson, for the appellants,
    .contended, 1st. That, upon the facts disclosed in the demurrer, the action of assumpsit, for use and occupation, was not maintainable; 2d. That the promise (whatever it intended) having been made in 1787,, and the plaintiff having, seven years after, to wit, in 1794, claimed and obtained an assignment of dower against the said defendant by a decree of Dinwid-die Court, by such subsequent proceedings relinquished the benefit they might have claimed from such assumpsit, and either obtained, or might have obtained, by that decree, full satisfaction for the time that the dower was withheld.
    1st. In support of the first point, they argued, that assumpsit would not lie for rent, before the stat. 11, Geo. II, c. 19, which never was in force in this country; and that assumpsit for use and occupation even under that statute, can only be maintained where the defendant holds by permission of, or by demise from, the plaintiff:() therefore such action will not lie, where the possession has been adverse or tor-tious. () Here there is no *proof of possession by permission of, or contract with the plaintiffs; but, on the contrary, the possession appears to have been adverse; for the defendant is in possession before Hamlin Eppes’s death, and remains so until 1794. Until 1794 the plaintiffs never are in possession. They then obtained it in consequence of a suit in chancery, laying claim to dower. This long continued possession of the defendant, (against those who never were in possession until the decree of a Court bestowed it upon them,) without paying any rent in the mean time, is utterly irreconcilable with a poss'ession by permission, or under contract. The presumption is, that he held as fee-simple proprietor by a purchase from Hamlin Eppes. If he did not, but was his tenant merely, he, after his death, either paid or was liable to pay rent to his heir at law, in whom was the reversion, and not to his widow, who had claim to no part of that rent till her dower was assigned. And, again, the widow (if he had held under a contract with her) would not have sued her own tenant for an assignment of dower but would have turned him out of possession by ejectment. These circumstances, therefore, shew an adverse possession, and not one by contract or permission.
    Nor does the conversation in 1787 make any difference. Eor Cole reproaches Eppes for deceiving him respecting those thirds, not then laid off. Eppes admits it, and says he has written to his brother respecting the business. What business? The same thirds, not yet laid off, but claimed. The conversation evidently related altogether to compensation for the value of the thirds, not for the use and occupation.
    But, even if this could be interpreted a promise (in consideration of her loss) for the rent, instead of the thirds of the land itself, it would not be obligatory; because the previous use and occupation having not been by her consent or permission, such promise was on a groundless or frivolous consideration, () A previous moral obligation to pay would have made it bind-ing:() *but, if the defendant were Hamlin Eppes’s tenant, he was under no moral obligation to pay rent to the widow, when the law makes him liable to pay it to the heir. If he had brought the land of Hamlin Eppes, he paid a valuable consideration for it, under the idea of obtaining a complete title; and, having paid that consideration, under what moral obligation is he to pay 19 years’ rent for finding himself deceived in the bargain? But, independent of these objections, the promise wTas without consideration, because the demandant in a writ of dower can in no case recover damages where she has delayed herself ; and, where her husband did not die seised, can never recover them at all. ()’ And, therefore, m sundry suits for dower, brought by Mrs. Elizabeth Braxton, the Chancellor gave her no rents but from the-date of his interlocutory decree.
    And such a promise, under such circumstances, even if it were not for dower, would be void for its insufficiency and un-' certainty; for, suppose that A. breaks B.’s. nose, or kicks his breech, and afterwards promises to pay him for the outrage to his. satisfaction, could assumpsit be maintained on such a promise? No: the party must still resort to his action of assault and battery. So here the remedy is not by assumpsit, for-the deforcement of dower is as much a tort as an assault; and in 4 Bac. Abr. (Gwill. ed.) p. 44, ad. finem, tit. Rent, letter K. the doctrine is laid down, that assumpsit for-use and occupation lies only for a sum in gross.
    2d. In support of the second point, they observed, that even without such promise, the damages were recoverable in the su'it in Chancery, if the plaintiffs were legally entitled to them;() of course, with such promise. Will the Court, then, permit the same plaintiff to vex the same defendant by two actions for the same cause, when one action would have settled the whole? It is laid down, that no action shall be maintained which it is contrary to - the policy of the law to support, () *Now, however it may be consonant with the policy of lawyers to support such an action, it cannot be the policy of the law, if, indeed, its purpose be justice. Therefore, if a man were to bring detinue for a slave, and ask no damages for his hire, he would not be permitled to claim such damages in a subsequent action.
    Hay, contra.
    The declaration charges, that the defendant held by the permission of the plaintiff Rebecca, and the circumstances disclosed by the testimony are sufficient to authorise a conclusion, that such was the fact. But, suppose he was guilty of trespass, and illegally entered on the land, his subsequent promise was sufficient to bind him: the tort, if any, was thereby waived, and he held by the permission of the plaintiff. It does not appear under what right Peter Eppes was in possession: it may be inferred, from his length of possession, that he was a purchaser of the land. But, although he may be regarded as a purchaser from Hamlin Eppes, the moment of his death his widow had a complete right to dower. Since, then, she did not bring suit, for so many years, the inference ,is inevitable, that Peter Eppes held in virtue of a contract with her.
    It is objected that the promise related to the thirds of the soil itself, and not to rent. But the words were, “I will pay you to your satisfaction.” If what he said had related to the soil, would he not have said, “I will have your wife’s third of the land laid off?” The plain import of the words was a promise to pay money; and this, of itself amounted to a contract, if one had not existed before. The Jury might have inferred a contract, and, on demurrer to evidence, the Court has a right to infer whatever the Jury might.
    It is said, too, that assumpsit for use and occupation lies only where the contract is for a specific sum. The authorities cited do not support the position; and 1 Supp. to Viner, 124, 4 Esp. Rep. 59, and 1 Bac. Abr. (Gwill. ed.) 257, are authorities to the contrary. In the ^passage last cited from Bacon, it is said, that before the statute 11, Geo. II, c. 19, it was holden, that this action was maintainable “where there was no stipulation for any express rent;” citing Mason v. Welland, Skinner, 238, 242, S. C. in 3 Mod. 73, by the name of Mason v. Beldham.
    But, if there was no legal'obligation, the defendant was under a moral obligation to pay; and this was sufficient to support an assumpsit; as in the case of a promise to pay a debt barred by the act of limitations, or of a bankrupt promising payment, after having obtained his certificate. The delay of the widow to bring suit was occasioned by the promises of the defendants, and the confidence reposed in them.
    I admit, that in a writ of dower damages are not recoverable, except when the husband died seised. But that makes no difference in this case. The parties surely could settle their own rights as they pleased. The widow could have recovered the land sooner, and, after recovering it, might, it is agreed, have rented it to Eppes. If so, were not the parties at liberty to make a contract without the expense and trouble of a previous recovery?
    ‘As to the second point, that the rent might have been recovered in the suit in chancery; the rule of law, that two actions shall not be brought where one would do, is general, but not universal. A person may bring ejectment and trespass, for the mesne profits. So, in detinue for slaves, the great object is the title of the slaves, and not hire. If sales be recovered, and no hire given, a Court of Chancery will entertain jurisdiction for an account of the profits. In like manner, if a Court of Chancery, in a case before it, does not all that it might, this is no reason why a Court of Law should turn the plaintiff out of doors. But could it have been done in this case? Where the husband does not die seised, the widow cannot recover damages at law; and equity follows the law. *Suppose, then, the bill had demanded damages, the Court would not have given them. If this particular contract had been stated, the Court of Chancery would have said, “We have nothing to do with this: institute your action at law upon the special agreement, and you will recover damages there.”
    
      
      Assumpsit — Use and Occupation of Land. — Assump-sit for use and occupation of land by permission of tbe plaintiff, lies on an implied as well as an express promise. Sutton v. Maudeville, 1 Munf. 407. citing Eppes v. Cole, 4 Hen. & M. 161. To tbe same effect tbe principal case is cited in Briggs v. Hall, 4 Leigh 492; Bolling v. Lersner, 26 Gratt. 65; State v. Harmon, 15 W. Va. 124; Gosborn v. Steward, 15 W. Va. 658.
      See monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
    
      
      ta) l Esp. ÜST. P. 20.
    
    
      
      Cb) Ibid.
    
    
      
      (c) 1 Esp. N. P. 94.
    
    
      
      (d) Ibid. 95.
    
    
      
      (e) Co. Lit. 32, b.
    
    
      
      (f) Curtis v. Curtis, 2 Bro. Cb. 620.
    
    
      
      (g) 1 Esp. 92.
    
   Wednesday, November 8. The Judges pronounced their opinions.

JUDGE TUCKER.

In considering this case, it will first be necessary to examine whether the evidence stated in the defendant’s demurrer be sufficient for a Jury to have found a verdict for the plaintiffs, upon either of the counts in the declaration.

The demurrer to evidence states, that in June, 1787, a conversation passed between the plaintiff and the defendant, wherein the former told the latter, “that he had greatly deceived the plaintiff, as to the thirds of the land.” The defendant replied, “that he had, but that he had written to his brother concerning the business, and got his answer, and that it should be settled directly; and you,” meaning the plaintiff, “shall be paid therefor to your satisfaction.” It is impossible not to understand its conversation, as relating to some prior agreement between the parties, respecting the land which is alleged to have been in the occupation of the defendant. It is impossible not to understand it as recognising the plaintiff’s right thereto, and the defendant’s obligation to make him satisfaction for the enjoyment he had had of it, which he had failed to do, according to some previous promise; the acknowledgment of the defendant, that he deceived the plaintiff, will admit of no other construction ; for unless he had promised, he could nqt have deceived him. The subsequent promise, that the plaintiff should be paid therefor to his satisfaction, is amply sufficient to support the second *count, which is a quantum valebat, for the use and occupation of a plantation for a certain number of years. And I think a Jury might well have inferred, from this evidence, that the defendant had agreed to pay the plaintiff for the same, so long as he should occupy and enjoy it, which would also support the first count. The nature of the right of the plaintiffs, thus acknowledged by the defendant, cannot, after the enjoyment of the land, under them, be necessary to be inquired into. If there had been no demurrer to the evidence, I think the Jury ought to have found a verdict for the plaintiff, and therefore think the District Court gave a correct judgment upon the demurrer.

The next question is in the nature of a motion in arrest of judgment; namely, whether this action of assumpsit, for the use and occupation of a plantation, lies in this country.

We are told by Mr. Dspinasse, (1 Nisi Prius, 20,) that the action of assumpsit for use and occupation was given by stat. 11, Geo. II, c. 19, which was never in force in this country. Judge Duller, in his treatise on the same subject, p. 138, says, at common law it was holden, that assumpsit would lie for rent on an express promise; but not upon an implied promise; and such express promise must have been made, at the same time with the lease; and for this he cites 3 Dev. ISO.

Mr. Bspinasse does not appear to be altogether correct in this passage. The action for use and occupation was not given by the statute of George: it had been used at least from the time of James the first, as the case of Dartual v. Morgan() clearly proves; and the case of How v. Norton() shews it was in use in the time of his son Charles II, and a variety of other cases might be shewn to prove the same thing. We are told by Judge Bathurst, that the statute was made for the benefit of landlords, and to prevent tenants from putting them to difficulties (after enjoyment of the lands) *in recovering their rents under parol demises or agreements; for, before the statute, in actions for the use and occupation, the landlords were continually nonsuited, by the tenants’ proving, at the trial, some parol demise, or memorandum in writing, amounting to a demise; for, in that case, the landlord ought to have brought an action of debt, and not case, on assumpsit; which was remedied by the statute. That this was the true reason for making the statute, will appear by the cases on the subject, from the time of Hobart, ()

I shall now notice some cases where actions similar to the present have been brought.

The case of Dartnal v. Morgan() was an action of assumpsit: ‘ ‘ Whereas the plaintiff locasset to the defendant a certain warehouse, the defendant assumed to pay him, for every week that he occupied it, eight shillings; and alleges, in fact, that he occupied it twenty-seven weeks; for which, upon not paying upon request, the action was brought. Upon non assumpsit, and verdict for the plaintiff, the defendant moved, in arrest of judgment, that this is a lease, (at least at will,) and the eight shillings weekly is in nature of rent, and for rent reserved in the lease, (which sounds in the realty,) assumpsit lies not; nor for debt upon a specialty, or upon record. But here, forasmuch as this is not a lease, but a promise, that as long as he permitted him to occupy the warehouse he would pay it, it is not anj' rent, but merely a promise in consideration of occupying, &c. Wherefore this action well lay; and it was adjudged for the plaintiff.”

The case of Bard v. Bard() was also an action of assumpsit, in which the plaintiff declared upon an insimul computassent, concerning the arrearages of rent issuing out of defendant’s land, and about payment of a legacy due to the plaintiff by his father’s decree. The defendant pleaded non assumpsit; and found against *him, and, on motion, in arrest of judgment, the plaintiff had judgment; for that they accounting together, and the defendant promising to pay, was a sufficient cause of action.

In Sleeck v. Bowsal, () the plaintiff declared in assumpsit, for that whereas the defendant was indebted to him in the SI. pro redditu ante tunc debito, the defendant promised to pay that SI. whenever required; and alleged in fact, that, after such a day and year, he made a request, and the defendant hath not paid him. Defendant pleaded payment; and found against him. And it was moved, in arrest of judgment, that the declaration was not good, because he doth not shew when the rent was due, nor for what term, nor upon what contract. Yet, because the defendant had taken notice thereof, affirming he had paid it, and issue thereupon, and found against him, the declaration is made good.

How v.Norton, () was also an action of as-sumpsit, in consideration the plaintiff would permit the defendant to enjoy such land, and that he permitted him to enjoy it three years, and that it was worth 101. per an-num. After verdict for the plaintiff, it was moved, in arrest of judgment, 1st. That it does not appear that the plaintiff had any title to the land; 2d. If he had title, that debt lies, and not this action. But the Court held the contrary on both points, and gave judgment for the plaintiff. This case appears to me to be expressly in point, there being no other difference that I can perceive, than that it was after a verdict; whereas, in the case before us, there is a demurrer to evidence. But if the Court, when substituted for the Jury, find the evidence sufficient to maintain the issue on the part of the plaintiff, the effect appears to me to be the same as if the Jury had found a general verdict for him.

Professor Wooddeson, speaking of the action of assumpsit, (vol. 3, p. 152,) says, “We have heretofore seen that it cannot be brought on a writing under seal; '^therefore, for example, not on an indenture of lease for the rent thereby reserved. Neither, as it was anciently said, will the law imply any promise to pay the rent in a parol lease; for, in the technical phrase, the demand savours of the realty, and there are other remedies; by action of debt, though that too is a personal action, and by distress. But if there be in fact a collateral and express promise to pay the rent, and no deed executed under seal, it may be recovered in this mode; because it appears, that the promiser intended to give the plaintiff this additional remedy. This action is also maintainable, to obtain a, recompense for the occupation of the plaintiff’s land, by his permission, where there is no stipulation for any precise rent. The declaration states a promise of the defendant to pay so much as the landlord reasonably deserved to have for such permission ; which promise may be implied by law. For, there being no certain rent, the plaintiff could neither distrain, nor, properly, perhaps, bring an action of debt; this seems the plaintiff’s genuine remedy. If, therefore, it may be allowed at all, the promise may well be implied; and though a precise rent was agreed for, (and consequently there was an actual promise of payment, which, however, the plaintiff has not evidence to prove,) yet, in this way, he may recover satisfaction. Scarce any thing is more usual than such an action of assumpsit for the use and occupation of the plaintiff’s house by his permission, which also being a real estate, the same objection, if anjT, might in that case be alleged against implying a promise of making adequate compensation.” In the present case an express promise to pay the plaintiffs to their satisfaction has been proved; but where it is otherwise, according to the opinion of Judge Buller himself, in the case of Birch v. Wright, () the action may be maintained either upon an express, or an ^implied contract; for which he cites the authority of Lord Mansfield, in the case of Carmier v. Mercer, which I have never seen.

I am, therefore, of opinion, that the judgment be affirmed.

JUDGE ROANE.

As the declaration in this case states an express promise to pay for the use of "the land of the appellee, of which it is further stated, “he had, before that time, by the permission and assent of the appellant, had the use and occupation,” I have no doubt but that the action is sustainable. But, understanding that the point presented by the case of Sutton v. Mandeville is, whether this action is maintainable without proof of an express promise, I have not anticipated the consideration of that question ; though I doubt not that the doctrines mentioned by the Judge who preceded me, on that point, are correctly stated.

Upon the demurrer to evidence I think the District Court decided correctly, and am for affirming the judgment.

JUDGE FEEMING

said it was the unanimous opinion of the Court that the judgment be affirmed. 
      
      (a) Cro. Jac. 598.
     
      
      (b) 1 Bev. 179.
     
      
      (c) Green v. Harrington, Hob. 284, 1 Brownl. 14, Hutt. 34; S. C. Vid. etiam, 1 Danv. Ab. 28, Actions, (O.)
     
      
      (d) Oro. Jac. 598.
     
      
      (e)Ibid. 602.
     
      
      ) pro. Jac. 668.
     
      
      ) 1 Bev. 179.
     
      
      (a) 1 Term Rep. 387.
     