
    LAMB et al. v. LAMB.
    (Supreme Court, General Term, Third Department.
    February 13, 1894.)
    Infancy—Use and Occupation of Land.
    In an action by infants for the use and occupation of their realty, where it appears that defendant was in possession by consent of the general guardian, no recovery can be had unless defendant expressly or impliedly agreed to pay rent.
    Appeal from special term, Albany county.
    Action by Edith M. Lamb, Blanche A. Lamb, and Beatrice L. Lamb, infants, by their guardian ad litem, James White, against Jesse M. Lamb, to recover for the use and occupation of real estate. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, plaintiffs appeal. Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    J. F. Crawford, (E. Countryman, of counsel,) for appellants.
    Henry A. Strong, (Matthew Hale, of counsel,) for respondent.
   PUTNAM, J.

The appellants urge that the court below erred in holding that the action did not lie to recover the value of the use and occupation of the premises described in the complaint, in the absence of an agreement, express or implied, between defendant and the guardian to pay rent therefor; that an intruder upon, or a mere occupant of, the lands of an infant is liable to account in an action for rents and profits. It is undoubtedly true that one who occupies the land of an infant wrongfully or without right —an intruder thereon—can be made to account in a proper action. Is this one of those cases, under the pleadings, or the facts appearing on the trial, where the defendant could be made to account, in the absence of an express or implied agreement to pay rent? The complaint certainly is not drawn to recover a claim for mesne profits or rents accrued to plaintiffs by reason of a wrongful occupancy of the lands belonging to plaintiffs. It is held that a mere intruder on the lands of an infant is considered in, equity as entering in the character of guardian, and, after the infant comes of age, he may, by a bill in chancery, recover the mesne profits. Martin’s Adm’r v. Fielder, 82 Va. 455-459; Van Epps v. Van Deusen, 4 Paige, 64-71; Drury v. Conner, 1 Har. & G. 220. It does not appear that the complaint is drawn as a bill in equity to recover the mesne profits, under the above cases. It does not state facts to justify such a recovery. It does not allege how defendant entered or occupied said premises, or that she occupied them wrongfully, or as an intruder, or without the consent of plaintiffs’ general guardian. It does not ask an accounting. The complaint is evidently framed to recover rent for the use and occupation of the premises described in the complaint, due to plaintiffs under an express or implied contract. We are therefore inclined to agree ..with the position taken by respondent, that, under the pleadings, the plaintiffs, to recover, were compelled to show an express or implied contract with the defendant to' pay rent. But, assuming the complaint is sufficient to justify a recovery in the absence of such contract, we are of the opinion that, under the facts established on the trial, the court below made the proper disposition of the case.

The authorities cited by appellants to sustain their position, above referred to, are not applicable to such a case as this. In Boylan v. Deinzer, 45 N. J. Eq. 485, 18 Atl. 119, the defendant wrongfully retained possession of lands of plaintiff after her term had expired. The case merely affirms an old doctrine stated in Story, Eq. Jur. 571, viz.:

“Thus, for instance, if a man intrudes upon an infant’s lands, and takes the profits, he is compellable to account for them, and will be treated as a guardian or trustee of the infant. And this is but following out the rule of law in like case, for so greatly does the law favor infants that if a stranger enters into and occupies an infant’s lands he is compellable at law to render an account of the rents and profits, and will be chargeable as guardian or bailiff.”

In Hicks v. Sallitt, 3 De Gex, M. & G. 782, it was held that a party found wrongfully in the possession of property is to account for the rents and profits. All the other authorities cited by plaintiffs are to the same effect, holding that a mere intruder, or one wrongfully or without right in possession of the premises of an infant, in a proper action may be made to account for the rents and profits. In this case plaintiffs, on the trial, failed to produce any evidence showing that defendant was an intruder, or wrongfully in possession of the premises in question. . The testimony shows that she was rightfully occupying the same. It will not be questioned but what James White, as general guardian of plaintiffs, had power to control their real estate. He could bring ejectment or trespass, could lease, manage, and protect the same. See 2 Kent, Comm. 228; Torrey v. Black, 58 N. Y. 185. The evidence fairly shows that defendant remained in possession of plaintiffs’ real estate by consent of and under the general guardian. There is a dispute as to the terms of her occupancy; she claiming that he agreed she might have the use of the house and $1,000 a year for the board and clothing of the children, and he testifying to facts from which a conditional agreement to pay rents might be inferred. But by the testimony of both—there being no other evidence in the case on the subject—it appears that after the death of her husband defendant continued in the occupation of the premises with the consent of the guardian. She testified, as already stated, that she was to remain in possession of the house, and receive $1,000 a year for the board and clothing of plaintiffs. He testified in regard to her occupancy of the house as follows:

“I told her that Mr. Crawford had told me it was necessary for me to make up an annual report of the business I had done for the children as guardian. She said, T suppose we will know how much the rent is going to be now.’ I said, T suppose so.’ I made up my report, and expected to go down with it, and Mr. Crawford came in and said it was not necessary for me to go down; that he would go down. * * * Q. Did you after-wards have a conversation with Mrs. Lamb? A. Yes, sir. * * * Q. What was said between you? A. I said, ‘Mr. Crawford has returned. They have said nothing in regard to the rent.’ That is, the surrogate had said nothing. * * * Q. What did you say to her then about rent for that residence? A. I said he had made no remarks about the rent of the residence, and she said, ‘Probably he. don’t intend to charge me anything.’ Q. Speaking of the surrogate? A. Yes, sir. I said, ‘It looks so.’ Q. Before that time, had remarks passed between you and Mrs. Lamb upon the subject of the surrogate fixing the rent? A. Yes, sir. The Witness: We had talked about it. * * * Q. From wrhat had occurred between you, what did she say about her impression, and what did you say about giving your impression? A. That he had the stating of the amount of the rent. Q. That is, the surrogate had? A. Yes, sir. Q. Or whether rent should be paid at all? A. Yes, sir.”

Plaintiffs’ testimony therefore shows that defendant was in occupation under an agreement to pay rent if the surrogate required it, otherwise not; hence, by the testimony of both parties, defendant was rightly in possession of said premises by consent of the guardian. Hence the authorities referred to by appellant, and on which he relies, are not applicable. The defendant, being in possession of the premises in question under an agreement with the guardian (and he ivas in fact the landlord) that he should have the rent of the said premises and $1,000 for and said children, or, under" the circumstances and agreement as detailed by the plaintiff in his testimony, in either case was so in occupation under the guardian, by his permission, and hence was not an intruder, or wrongfully on the premises. It follows, we think, that respondent, if liable at all to pay rent, was so liable under an express or implied contract to make such payment. She could not be made responsible as a wrongdoer or intruder or one unlawfully in possession. The trial judge therefore properly charged the jury that, unless there was an express or implied agreement to pay rent, the plaintiff could not recover.

As to whether the evidence disclosed such an agreement on the part of the defendant was a question of fact, which was properly and fairly submitted to the jury by the trial court, and we cannot say that the verdict of the jury was unsupported by the evidence. It is held that, while the possession of real property with the consent of the owner is ordinarily sufficient to sustain an action upon an implied agreement for use and occupation, such an agreement may not be implied where the circumstances attending the use and occupation show clearly there was no expectation to pay rent by either of the parties. Collyer v. Collyer, 113 N. Y. 442, 21 N. E. 114. Even if we should not take into consideration the testimony of defendant in the case, we think the other evidence was sufficient to support the conclusion reached by the jury. The petition to the surrogate, signed by defendant, stating that no rent was derived from the premises in question; the testimony of White before the surrogate that he thought as long as defendant and her children occupied the house she should live there rent free; his annual reports to the surrogate, in which he made no mention of rent; his semiannual paymént to defendant without deducting anything'for the use of said premises; the fact that she remained in the occupation five years without plaintiffs’ making any claim on account of the occupancy; all the facts proved on the trial,—tend to show that it was not the intention of the parties that defendant should pay for the occupation of said house, but that she should have the use of the homestead for herself and the plaintiffs in addition to the payment of $1,000.

It is suggested that if plaintiffs permitted defendant to occupy the premises she .had no right to use them, and plaintiffs had no right to allow her to do so, without the payment of rent within the principles established in Torrey v. Black, supra, and kindred cases. But the guardian had a right to allow defendant to occupy the premises free of rent if the arrangement he in fact made was a reasonable and fair one. He could allow her to remain therein in part payment for the board and clothing of his wards. The guardian and defendant could not malte a contract the effect of which was to defraud the plaintiffs. But such a fraudulent arrangement was not alleged in the complaint or proved on the trial. It was not shown that the. use of said premises and the payment of $1,000 was not a proper and just arrangement. The defendant was entitled to the use of one-third of the premises, and she therefore received the use. of two-thirds thereof and $1,000 for taking care of the three plaintiffs, the latter occupying the house with her. It certainly does not appear from the,evidence that a contract which allowed her the use of the house was improper. If the view taken by plaintiffs is correct, respondent furnished a house, worth $600 per annum, for the purpose of keeping the three infants, receiving $1,000 per year for their board and clothing. Such an arrangement might be deemed unfair, it not being probable that she would have required such a house except for the purpose of boarding the plaintiffs. We have examined carefully the various exceptions taken on the trial. We do not think either of them requires discussion or a reversal of the judgment. Judgment affirmed, with costs.

MAYHAM, P. J., concurs in result. HERRICK, J., not acting.  