
    *Robert Richey v. Thomas S. Hinde.
    The action for use and occupation only lies where a tenancy is established.
    
      Entry on land tortious, the tort can not be waived and rent claimed in an action of assumpsit.
    This is a motion to set aside a verdict rendered at the trial of a suit in Champaign county, which is reserved for decision here.
    The declaration contains two counts in assumpsit: 1. For use and occupation. 2. For money had and received. A verdict was rendered for the plaintiff for one thousand two hundred and forty-six dollars, subject to the opinion of the court; whether, upon the facts proved, a recovery can be' had in this form of action. Qn July 19, 1824, Hinde and wife obtained a decree in the Circuit Court of the United States in this district against Richey, by which Richey was directed to convey to Mrs. Hinde the title to a certain tract of land, and to surrender the possession. In September, 1824, the possession not having been given up, was transferred to Hinde, by an hab. fao. poss. issued under this decree. In October, 1824, the deed was executed transferring the title to Mrs. Hinde. In 1828, an appeal having been taken, the decree was reversed. In November, 1828, the possession of Hinde was terminated by proceedings in forcible entry and detainer at.the instance of Fox, who had acquired Richey’s interest in the land. The plaintiff seeks in this suit to recover the rents and profits of the land while in the possession of Hinde.
    Swan and Mason for plaintiff:
    The defendant insists he is not liable in this action.
    1. Because the relation of landlord and tenant is not shown to have existed between the parties. We cite, to show this is necessary to maintain the action, Wood. Ten. 432; 6 Johns. 46; 13 Johns. 489; 4 Ohio, 213.
    2. We urge the decree of the circuit court was not vacated by the appeal, for the practice of their courts is regulated by that-of the chancery courts in England. 2 L. U. 56; 1 Pet. 6; 9 Ves. 316; 15 Ves. 181.
    3. Supposing the decree was out of the way, the plaintiff, to recover, should have moved the court for restitution, and had a writ regularly executed. 7 Cranch, 602; 1 Cox, 101; 4 Johns. 609; 3 P. Wills. 379; Croke Eliz. 465; 19 Vin. Ab. 153, pl. 5, Tit. Rent.; 9 Vin. Ab. 590.
    *4. The decree for possession is like a judgment for the plaintiff in ejectment, and the same process may be had to recover the possession. Adams’ Tit. 225; 3 Ves. 206 ; 4 Johns. 636.
    5. The decision'of the cases, 3 Ohio, 264, and 4 Ohio, 205, was right upon authority and reason. Bul. N. P. 138: Wood. Ten. 430; 6 Johns. 48.
    6. The legal estate, by the death of Mrs. Hinde and by operation of law, vested in her heirs, who were strangers to the decree, and are strangers to the action. No restitution could after her death be awarded, nor could the legal estate descended be divested without making them parties. 4 Bibb. 195; 2 Salk. 587; 9 Vin. Ab. 590.
    7. We conclude the plaintiff has no legal right to sustain this action: 1. Because the relation of landlord and tenant is not shown to exist between the parties. 2. A stranger can not recover rent of the owner without express agreement. 3. Because the legal estate is in Mrs. Hinde’s heirs, who are entitled to the rent.
    James, for defendant:
    If. the defendant had any defense to the merits of this case, he would show it in the present form of action, which is so well calculated to do entire justice between the parties. The objection, that the action should be trespass, not case on assumpsit, implies that the plaintiff has a right in some form to recover the value of the rents he has lost, by means of the erroneous decree under which the defendant received them.
    There can be no doubt of the plaintiff’s right to recover the value of the mesne profits which the defendant had received. It-is clear that wherever a writ oí' habere facias possessionem has been executed by giving possession, and is avoided by the judgment of a court, a writ of restitution should be awarded. Lowery v. Jenkins, 3 Bibb. 314.
    If a judgment be reversed, the party shall be restored to all -he has lost by occasion of the judgment, and a writ of restitution be-awarded. 2 Tidd. 1136 ; Cummings and Wife v. Noyes, 10 Mass. 433; Tappen v. Van Wagenen, 3 Johns. 465; 1 Har. & Johns. 408, 409.
    At common law, the mode of restitution was for the sheriff, when the restitution was for land, to ascertain by a jury the value of the rents and profits, to levy the same and pay over *to [373 plaintiff. 10 Mass. 433. Bat in Ohio the value must be assessed In court, and for this purpose assumpsit is proper.
    The action of assumpsit will lie wherever a person, without any •valuable consideration on his part, has received money which in good conscience belongs to another, and which ex cequo et bono he ■ought to refund. 2 Comyn on Contracts, 5.
    If the defendant be under an obligation from the ties of natural justice to refund, the law implies a debt, and gives this action founded in the equity of the plaintiff’s case, as if it were upon a ■contract. 2 Burr. 1008.
    It lies in numberless instances for money the defendant has received from a third person, which he claims title to, in opposition to the plaintiff’s right, and which he had by law authority to receive from such third peieon. Ib. And it is not necessary there should be any privity between the parties, except that which is •created by law. Ib.
    So it lies against an overseer of the poor to recover money in his hands which had been levied on a conviction, which was •afterward quashed. Felthean v. Terry, Lofft, 207, cited in Cowper, 419.
    
      Indebitatus assumpsit will lie for rent, received by one who pretends to a title; for in such case an account will lie. Arris v. Stukely, 2 Mod. 262.
    If a man, pretending title to my land, receive my rent, and get my tenants to attorn to him, an indebitatus has been held to lie for the money. 12 Mod. 324.
    And on the same principle, if one tenant in common receive all the rents, his co-tenant may bring assumpsit for his part. 9 Mass. 538.
    It will lie wherever account will lie. 2 Mod. 262, and 12 Mod 517. “A man shall have a writ of account against one as bailiff or receiver, where he was not bailiff or receiver; as if a man enter into my land to my use, and receive the profits thereof, I shall have account against him as bailiff” E. N. B. 117, A.
    “ Account lies against him who receives my rent without my appointment.” Ibid. “ If one receives rents from my tenants without my assent, account lies, and n’unque receiver, shall not aid him.” Ib. 118, B.
    The action for money had and received can not be too much ■encouraged, if the defendant be guarded from surprise. 1 Johns. 135. It is in the nature of a bill in equity, and therefore *to [374 support it the plaintiff must show that he has equity and conscience on his side, and could recover in a court of equity. 2 Johns. 370. The question always is, “is it against conscience that the defendant should keep the profits he has received.” Cowper, 793.
    A bill in equity will lie for rents where the party receiving them has made entry. 2 Vern. 724; Curtis v. Curtis, 2 Bro. C., party receiving them has made entry. 2 Vern. 724.
    Both from principle and precedent, this action would be proper in this case from the circumstances of it; as it is the mere instrument of ascertaining the value of a right, resulting from the decree of a court, it may be used if no rule of law forbids it; the action of trespass might for this end merely answer the purpose as well. Butin that there would be this inconsistency, that the defendant would be charged with entering vi et armis, when in fact he was authorized to do so by judicial process. If it be said that the first judgment is void by the reversal, and can not be shown in his justification by the defendant, it may be answered, that this is merely a fiction of law. If it be said that the party uses the judgment and process, he does it at the peril of being a trespasser from the beginning. On the avoidance of the process it may be asserted with as much consistency with truth, that entering under a known, legal liability, to account for the issue and profits if the judgment should be reversed, he undertakes in that event to account accordingly. 10 Mass. 435.
    The action of assumpsit is more favorable to the defendant than the action of trespass. In the former he accounts for only the nett value of the profits received, after deducting rents and interest on them which has been done in this case; and he would not be chai’geable for the time the property stood idle without his default. But in the action of trespass the plaintiff might recover damages beyond the amount and value of the rents actually received. Oowper, 416.
    The action of trespass for mesne profits would not lie in this case; for that action can only be brought after a recovery in ejectment. Adams on Ejectment, 328; 1 Atk. 525. In this ease there has been no recovery — no establishing of trespass. ' The declaration in trespass for mesne profits requires a recital of the recovery in ejectment, the value of the rents, etc.
    
      This whole action of trespass for mesne profits is a contrivance of a very awkward construction. It is founded on a recovery 375] *in ejectment, and the record is evidence of the trespass. But the recovery of damages in ejectment is no bar for mesne profits for the same trespass. The recovery in ejectment is then mere evidence of a right established, and yet courts have held, in-actions of assumpsit for use and occupation, that it was treating the party as a trespasser for the same thing. It has caused many of the distinctive characters oí an action of trespass to be abandoned for the furtherance of justice. Thus it has been decided in New York, that the action for mesne profits is an equitable action, and will allow of every kind of equitable defense: 2 Johns. Ca. 438, and in Maryland it is said that a recovery in trespass for mesne profits, is only for use and occupation of land, and does not bar an action of trespass quare clausum fregit for injuries done to the premises in the same period: Gill v. Cole Har. & Johns. 403; so that it becomes at last in its nature very much like an action of assumpsit.
    The plaintiff is not furnished with the argument of defendant’s-counsel, on the motion to overrule the evidence and enter a non-suit. It is understood, however, that he relies chiefly on the case of Butler v. Cowles, 4 Ohio, 213. The court there decided that the action of assumpsit for use and occupation will not lie to recover mesne profits after a recovery in ejectment. That case was regarded as settled by Birch v. Wright, 1 Term, 378, where the reason is given, that the plaintiff has already elected to treat the defendant as a trespasser, and thus destroy the presumption of a contract. But in the present case the defendant has not been treated as a trespasser. Nor has there been any recovery in ejectment.
    The plaintiff regards this as an open question, untouched by the decision in the above case, and if it is thought that propriety of the count for use and occupation js questionable, indulgence is-asked for an effort to show that some of the dicta appended in that decision, were not duly considered by the writer of the opinion.
    It has been often, but erroneously, said, that at common law assumpsit for rent lay only on express promise .given at the time of the lease; and that the action oí assumpsit for use and occupation was given by 11 Geo., 2 chap. 719, which was enacted in 1738. But it had been in use long before. The case of Dartnal v. Morgan, Cro. Jac. 598, was decided in 1621. The case of Sleek v. Bow-376] man, Cro. Jac. 668, was decided in 1623. The *case of How 
      v. Norton, 1 Leving, 179, was decided about 1680, and in all of them the promise was implied in consideration of the occupancy. ■The quotations already made from 2 Mod. 262 (anno 1689), and 12 Mod. 324 (anno 1700), show that the courts then held it settled "that an indebitatus would lie.
    The case of How v. Norton was assumpsit in consideration that 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 ten pounds per annum. After verdict for plaintiff it was moved in arrest of judgment: 1. That it does not appear that the plaintiff had any title to the land. 2. If he had title, debt lies and not this action; but the court held the contrary on both points ■and gave judgment for the plaintiff.
    So far,'then, as the statute authorized the action, it only af.firmed the common law; but the object of the law was to enable “ landlords to receive a reasonable satisfaction for the use and occupation of lands held by defendants where the agreement was not by deed.” Before the statute, landlords were continually nonsuited by the tenants proving at the trial some parol demise, or memorandum in writing amounting to a demise; for, in ■in that case, the landlord ought to have brought an action of debt) ■and not case on assumpsit, which was remedied by the statute; “ 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 reserved, shall appear, the plaintiff, shall not, therefore, be non-suited ; but may make use thereof as an evidence of the quantum •of the damages to be recovered.”
    But the statute, nevertheless, has controlled the decisions in England ; and the same act having been in force in New York and in Massachusetts, their courts have conformed closely to the letter of the decisions requiring the relation of landlord and tenant to exist.
    If it were correct that the action was first given by the statute ■of 11 Geo. II., is it thence to be argued that-the action will not lie at all in Ohio, inasmuch as the English statutes have no obligation here? It may be confidently answered that the great remodial powers of the common law will accommodate to every emergency of justice, and mete protection and security to every private right. It is in force here according as it may suit our circumstances and condition; and the courts are invested with an •original discretion to mold its form and direct its action to the 377] furtherance of justice. This benign principle will *fully establish, that the action of assumpsit for use and occupation will lie in cases by the owner of land against anyone who has enjoyed the same, except where the owner has elected to treat the occupant as a trespasser. Wherever a person establishes his right to land as owner, and proves the occupancy of it by another, the law will thereupon imply an undertaking, and promise, by the occupant, to make a reasonable compensation for the occupancy.. This is the great perfection of the rule finally established in this action, which has always been struggling for enlargement; that whoever has enjoyed the benefit of another’s goods, or Iaboi’, or property, he must pay to the rightful owner a just consideration for it, unless he show an agreement to the contrary. The law does not seek for promises, in fact, but implies them, if good conscience requires them. And this is done in a variety of cases, where the conduct of the defendant does not warrant the presumption of an agreement in fact. Thus where one unlawfully converts to his own use the goods of another, the owner may waive the tort and bring assumpsit for the value of them, and the action has been held to lie against one who steals another’s money.
    The same rule was formerly recognized in England as to themesne profits where a recovery had been had in ejectment. In Cheney v. Butler, Cowp. 246, Lord Mansfield said (1775) that ejectment and assumpsit for use and occupation had both been brought for the same pi’emises at the same time, and recovei’y had in each case. On objection made, it was holden that one of the remedies was not a waiver of the other. Why? Because they were both brought for several demands, to both of which, the plaintiff was entitled ; consequently, one could be no waiver of the other. In 1781, it was recognized in Goodtitle v. North, Doug. 584, as-having been argued and decided in King’s Bench, that a party may, after a judgment in ejectment, waive the trespass and bring use and occupation for the mesne profits. For the first time it was ruled differently in the case of Birch v. Wright, 1 Ter. 378. It was there held, that for all rent due anterior to the time of the demise, that assumpsit would lie. Because, by the statute of 4 Anne having rendered attornment unnecessary, and having put the party in the same situation by the conveyance as if the tenant had attorned, he is to be considered in possession ; and then as there was no deed, use and occupation would lie. The same has been held as the settled law of Ohio. 3 Ohio, 265. But it must be for another 378] *eause, to wit: that the owner is entitled to compensation for the use of his land by another. But for the rents posterior to the date of the demise, it was held, that the action would not lie. For this the court gave a kind of fever and ague reason, that the plaintiff could not be permitted to blow both hot and cold at the same time. (The decision was made in November.) The reasons of the decision are not satisfactory; they allege that the plaintiff had not waived the tort, but insisted on it by bringing his action of ejectment; that in one action he insists that the defendant is his tenant, and shall therefore pay him rent; in the other, he says, he is no longer his tenant, and must deliver up the possession. This 'is not a true statement of'the effect of the two actions ; and this discrepancy would exist only in case the plaintiff by one action was seeking to prolong and continue the tenancy, and in the other to abridge it. But they have no connection nor do they clash. The ejectment -may be used either to dispossess a tenant, not desired to be retained, or to establish a title which he disputed. It does not seek damages for the rent, nor need it be noticed in the action of assumpsit for the rent, or mesne profits. The two actions could not be brought for the same thing ; but they are brought for different things. The recovery in ejectment at best is nothing more than evidence; and it is hard to perceive how the fictitious trespasses of Richard Roe can, by rule of court, be so completely transferred to a defendant admitted to defend a title only, that the plaintiff should thereby forfeit a remedy which he unquestionably had previously, and which could be sustained by the same evidence that would support the claim before the demise.
    The defendant at the trial proved the death of Belinda Hinde, in November, 1827, which was prior to the reversal of the decree, and that the case had not been revived against her heirs. The decree can not be impeached collaterally; and however erroneous it might be, it must be held binding until reversed.
   Judge Lane

delivered the opinion of the court:

The verdict must be sustained by holding the affirmative of one of the following propositions : that the profits of land held under these circumstances, may be recovered in an action for use and oc379] cupation ; or that the money received by the defendant *as rent, ex cequo et lono belongs to the plaintiff, and may be deemed money had and received to his use.

The law prescribing forms of action is in a great measure arbitrary, yet where the distinction between them is plainly and definitely marked by a course of decisions, we are not at liberty to transcend the boundaries. In Massachusetts a suit like the present might be supported; 10 Mass. 433; 17 Mass. 299; but in England, and New York, and in this state, it is settled by authorities too strong to be disregarded, that an action for use and occupation will be in those eases only where a tenancy subsists. 11 Taunt. 105; 6 Johns. 46; 13 Johns. 489; 4 Ohio, 205. The defendant entered on the land as his own, claiming title; consequently the suit is not sustainable in this aspect.

Where one man has money which equitably belongs to another, it may generally be recovered in an action of assumpsit for money had and received to the use of the plaintiff. And oven where the money is received after and in consequence of an act of trespass, in many cases the tort may be waived and the money itself sought by suit as received to the plaintiff’s use. Hambly v. Trott, Cowp. 378; Sir Th. Jones, 127; Cases Collated, Saund. Pl. and Ev. I. 127.

But it is believed to be unprecedented to waivo the tort where a trespass is committed upon lands under a claim of title. The case of Arris et al. v. Stukelcy, 2 Mod. 262, does not sustain such a position ; it shows only that where one receives my rent in my name, under a pretended authority from me, I may sustain assumpsit, because I may charge him in account as my receiver, and he may not deny his pretended authority. The action of assumpsit is an inconvenient form of litigating titles to lands, and it may lead to an injurious interference with the laws concerning occupying claimants. And it is unnecessary to extend this form of action to this case, since the law has otherwise furnished ample remedy. A judgment of restitution is incident to every judgment of reversal, and there is a plain mode for carrying it into effect. 10 Mass. 434; 13 Coke, 21; Rast Ent. 308; 12 Serg. & Rawl. 292; 4 Ohio, 375. The rights, therefore, of the plaintiff, subsist, or should subsist of record, and in our opinion they can not be asserted in the action of assumpsit.

It is unnecessary to decide the other point made as to the effect of the deed to Mrs. Hinde. The defendant is entitled to a new trial.  