Bartlett v. Jones , 60 Me. 246 ( 1872 )

Appleton, C. J.

On April 23, 1866, the defendant conveyed a farm to the plaintiff by a conditional deed in the following words: ‘ The condition of this deed is such, that if Denman Bartlett or his heirs shall pay to the said Philip C. Jones three notes of hand, each at maturity, bearing even date with the instrument, of one hundred dollars each, and payable in one, two, and three years from January, 1867, this deed shall become of full force, otherwise shall be null and void and of no force or effect.’

The first note was not paid at maturity and the defendant thereupon entered upon the land, took possession of it as his own property and leased it.

By entering for condition broken, the defendant is in possession of his original estate as owner of the fee. In leasing the estate he acted as owner and not as agent for or tenant of any one.

The rent was his. He never promised or agreed to account for it to any one. He was under no legal obligation to account for it. The case shows nothing from which' a promise can be inferred.

It seems the plaintiff subsequently paid his notes and entered into possession. But this was the result of a new bargain. His estate had become forfeited. The defendant as owner had received the rent. The estate and the rent accruing therefrom were his. There is no evidence tending to show that the defendant ever promised to account for past rent, or that the plaintiff expected he would. If such was the agreement, the amount should then have been deducted from the notes. There is nothing from which any promise to account for the rent received can be implied. At no time did the relation of landlord and tenant, or of principal and agent, exist between these parties.

The plaintiff cannot recover for use and occupation, for the defendant never occupied his land. He cannot recover for money had and received, for the defendant has not had or received any of his money. The account annexed is for the rent of the land and stands on the same footing with the claim for use and occupation.

Plaintiff nonsuit.

Cutting, Kent, Walton, and Barrows, JJ., concurred.