
    Estep v. Estep.
    Note—Comelaint.—A note was alleged in the complaint to- be dated March 3, 1858, but the note filed with the complaint bore date May 8, 1858, and a demurrer to the complaint was overruled.
    
      Held, that the note with its true date appeared upon the record, and the defendant could not be prejudiced by the variance. Page 115.
    Tenants in Common.—Where one uses and occupies the land of which others are tenants in common, the law implies a promise to them to pay a reasonable value for the use of the premises. Page 115.
    Demurrer—Practice.-—-Special demurrers are not contemplated by the code.
    Objection to irrelevant matter must be made by motion to strike out. Grantor and Grantee.—A grantee can not retain possession and still defend for want of title in the grantor. Page 116.
    Landlord and Tenant.—The landlord is under no legal obligation to keep the premises in condition for proper use and enjoyment. Page 116.
    APPEAL from the Wayne Circuit Court.
   Ray, Ch, J.

The appellee was the plaintiff and the appellant the defendant. The complaint consists of four counts. The first and second are each upon a promissory note. The note declared on in the first paragraph is alleged to have been executed by the defendant to the plaintiff on the 3d of March, 1858; but tbe note filed witb tbe complaint bears date May 3, 1858. On account of this variance between the date of the note as alleged in the first paragraph, and the date as it appears on the face of the note filed, the defendant demurred to the complaint, but tbe demurrer was overruled, and he excepted. This exception is not well taken. As the note with its true date was on the record, and constituted a part of the complaint, the defendant could not be prejudiced by tbe variance ; and, moreover, the averment as to tbe date of tbe note might bave been amended, as, of course, at any timo during tbe trial in tbe Circuit Court, and will, therefore, be deemed to be amended in this court. 2 G-. & H. 104, 105-278, secs. 78, 580. Tbe fourth count states thus: “ On tbe 16th of March, 1857, tbe plaintiff' was seized in fee of tbe undivided one-third part of eighty acres of land, which she held as tenant in common with certain other persons, and on that day tbe defendant entered upon said land, and continued to use, occupy, and farm tbe same thenceforward to tbe 3d of May, 1858, when tbe plaintiff conveyed her interest to him; that tbe profits of said undivided one-third for tbe above period were of tbe value of $150, and tbe use of tbe same was worth $150; and that tbe defendant has never accounted to tbe plaintiff for said profits, or paid her for use of tbe same, etc. A demurrer to this fourth paragraph was overruled, and defendant excepted. Tbe only cause assigned in the demurrer is tbe want of facts sufficient to constitute a cause of action. This demurrer was correctly overruled. Tbe defendant was clearly liable for tbe value of tbe use of tbe premises. Tbe law will imply a promise to pay this reasonable value. 2 G-. & H. 36, sec. 14. Tbe defendant attempted to demur specially to tbe claim for profits asserted in this paragraph. No such demurrer is contemplated in our practice. Tbe question can only be presented by motion to strike out as irrelevant. 2 G. & H. 102, sec. 77. Whether tbe plaintiff should bave made other parties defendants is a point not presented by tbe demurrer, and we can not consider tbe argument of counsel thereon.

Tbe defendant filed answer in several paragraphs; to tbe third and fourth paragraphs plaintiff filed separate demurrers. Tbe third paragraph of tbe answer alleges that tbe notes declared on were given in consideration of tbe conveyance by plaintiff of her interest and title in certain lands, and that plaintiff bad at said time no interest or title in said lands, and has never since acquired any. This answer is defective, as it fails to aver eviction from the premises. A grantee can not retain possession and still defend for. want of title in the grantor. The demurrer was properly sustained. The fourth paragraph of the answer charges that plaintiff was indebted to him in the sum of $200 for “ certain improvements necessary to the proper use and enjoyment of the premises,” made by him as tenant, with plaintiff’s knowledge and consent; and he offers to set-off this sum against an equal amount of plaintiff’s claim. The demurrer was sustained, and we think correctly. The answer does not aver that the improvements were of any permanent or lasting value, or of any benefit to the estate, and fails to aver a promise to pay for them by plaintiff'. The law is well established that no such promise will be implied. The landlord is under no legal obligation to keep the premises in condition for “proper use and enjoyment.” Howard v. Doolittle, 8 Duer, 464. In Gott v. Gandy, 22 Eng. L. & Eq. Rep. 173, Erle, J., used this language: “The absence of any general authority, affirming the general duty of a landlord to keep the demised premises in repair, is very strong to show that no such duty exists.” It was held, in Hart v. Windsor, 12 Mees. & Wels. 68. “ That there is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let; that there is no implied warranty on a lease of a house of of land, that it is or shall be reasonably fit for habitation, occupation, or cultivation.”

Bielde 2¡¡ Burehenal, for appellant.

The court, after hearing the evidence, rendered a finding in plaintiff’s favor for the amounts of the two notes and interest. This finding is fully sustained by the evidence.

Judgment affirmed, with five per cent, damages and costs.  