Bancroft v. Wardwell , 13 Johns. 489 ( 1816 )

Per Curiam.

This is a motion to set aside a nonsuit granted at the trial. The action is for use and occupation; and the question is, whether the evidence was sufficient to support the action. It is a well settled principle, that this action cannot be sustained, unless the relation of landlord and tenant exists between the .parties. But the facts in this case furnish no evidence of any such relatiori. If the defendant could'be eo'nsi¿efe(3 a? holding at all, under,.or by the permission'oft vtbe plaintiffs, it was as a. purchaser, and not as a tenant. Such holdiñg. is riot enough to maintain this action, according to the decision of the court, in the case of Smith v. Stewart, (6 Johns, 49.) There , were no facts from which a tenancy could be inferred, and, therefore, .nothing which'-ought to have been submitted to -the jury. The first application made by Bancroft to the defendant’s agent,, was to ..sell his claim to-the land's in. Question, and which then lay . in common,. Neither the letter wrii’ten by the : a gent to' the defendant, nor the answer, intimate any-agreement to take, possession as tenant. But the'defendant .directs-his agent to take possession, at all events,-and be would do. what was right about.it. When he came,up. The possession was afterwards taken, with the cpnserit.'of the plaintiffs, and Under the above ar, rangement. The defendant never had consented, to any arrangement, other than to do what was right about it, and the only proposition made by the plaintiffs was to sell, and it was; impossible, from these facts,- to infer any agreement that could create the relation, of landlord and tenant. The motion to set aside ihV nonsuit, inust, therefore, be denied.,

Motion denied.