V. [TITLE.] No. 179. Grantee of Reversion, against Lessee. The plaintiff complains, and alleges: I. That one A. B., was the owner in fee of certain premises [describe them], and on the........ day of ...... 187, by a lease made between him and the defendant, under the hand and seal of the defendant, a copy of which is annexed and made part of this complaint, marked "Exhibit A," he leased to the defendant said premises, from the day of 187., for the term of ........ then next ensuing, for the [monthly or yearly] rent of .. dollars, payable to said A. B., his heirs and assigns, on the [state days of payment], which rent the defendant did thereby covenant to pay to said A. B., his heirs and assigns, accordingly. .... .... II. That thereafter, on the 187.., at day of said A. B., by his deed, under his hand and seal, sold and conveyed to this plaintiff the demised premises. III. That notice thereof was given to this defendant. of .... 187., the sum of day of dollars of said rent, for the quarter ending on that day [or otherwise], became due to the plaintiff from the defendant. V. That the defendant has not paid the same. [Demand of Judgment.] 12. Allegation of Assignment. That on the ........ day of.... 187., at the said 'A. B. assigned to the plaintiff said lease and covenants, and all his right to the rent therein secured. ........ 13. Allegation by Heir of Reversioner.-That the said A. B. was on the..... day of 187., seised of the reversion in said demised premises. That afterwards, and during the said term, on the .............. day of ......, 187., A. B. died so seised; whereupon the said reversion then descended to the plaintiff as his son and heir; and thereby plaintiff then became seised thereof in fee. 14. Assignments.-In these actions, the complaint should specifically allege the assignments to the grantee, and the better plan is to annex a copy or copies (if there be several) to the complaint: Beardsley v. Knight, 4 Vt. 471. It should be alleged distinctly that there was a lease, that the defendant was lessee, and is sued for the rent: Willard v. Tillman, 2 Hill, 274 No. 180. vi. Assignee of Devisee, against Assignee of Lessee. [TITLE.] The plaintiff complains, and alleges: I. That one A. B. was in his lifetime the owner in fee of certain premises [describe them], and that on the....day of.... 187., he leased the same to one C. D., by his lease dated on that day, a copy of which is hereto annexed, as part of this complaint, and marked "Exhibit A.” ........ 187., II. That by virtue thereof, the said C. D. entered into the possession of the demised premises. III. That on the....day of..... at..... ......... the said C. D. assigned all his right, title, and interest in the demised premises to the defendant. IV. That on the....day of..... said A. B. died. 187., at.. the V. That by his last will and testament, which was proved and admitted to probate, before the Probate Court of the county of...... in this State, on the....day of.........., 187., the said A. B. devised the reversion and rent to one E. F. .., . VI. That on the....day of...... 187., at..... the said E. F. assigned the said reversion and rent to the plaintiff. VII. That after the said E. F. so assigned the said reversion and rent to the plaintiff, the sum of........dollars accrued as the rent of said premises for the [month or quarter] ending on the....day of.. 187., under and according to the terms of said lease. ......... VIII. That the defendant has not paid the same. 15. Executor and Devisee.-One who is both executor and devisee of the lessor may join a claim for rent subsequent to the decease of testator, with a claim for damages for breach of covenant respecting personal property embraced in the lease: Armstrong v. Hall, 17 How. Pr. 76. 16. Form. It is not expected that this form will be of special use to the profession in California, but instances may present themselves where it may be of utility, and it is therefore inserted. [TITLE.] No. 181. vii. For Use and Occupation of Pasture. The plaintiff complains, and alleges: I. That on the....day of........, 187., at..... the defendant hired from the plaintiff, and the plaintiff rented to the defendant, the vacant lot of land [describe it], at the rent of........ dollars per month, payable in gold coin, monthly [or otherwise], on the first day of each month. II. That defendant occupied said lot by permission of the plaintiff, and as his tenant, under said agreement, for the grazing of his sheep [or catfle], from the....day of 187., to the....day of.... 187.. III. That the defendant has not paid the rent for the months of........and..... [Demand of Judgment.] 17. Request and Permission.—The allegation that the use and occupation of the lot in question was at the request of defendant, and by the permission of plaintiff, is the allegation of a contract, which the plaintiff is bound to establish to enable him to succeed: Sampson v. Shaeffer, 3 Cal. 201. 18. Terms Stated.-If a plaintiff in an action on a contract for the pasturage of cattle at a fixed price, does not insert in his complaint any quantum valebat count, judgment must be for the stipulated sum, or for the defendant: Seale v. Emerson, 25 Cal. 293. No. 182. viii. For Use and Occupation-Implied Contract. [TITLE.] The plaintiff complains, and alleges: I. That defendant occupied the [stable, or dwelling-house, No. 47 ........ street], by permission of the plaintiff, from the day of ...., 187., until the .... 187.. ....... .... day of....... II. That the use of the said premises for the said period was reasonably worth dollars. III. That defendant has not paid the same. [Demand of Judgment.] 19. Estoppel.-In an action for use and occupation upon an undertaking on appeal, the defendants are estopped from denying that the defendant in the judgment was in possession at the time he took his appeal and gave the undertaking: Murdock v. Brooks, 38 Cal. 596. 20. Foundation of the Action.-No action for use and occupation will lie where possession is adverse and tortious, for there can no implication of a contract: Sampson v. Schaeffer, 3 Cal. 196; Ramirez v. Murray, 5 Cal. 222. The right to recover for use and occupation is founded alone upon contract: O'Connor v. Corbitt, 3 Cal. 370; Espy v. Fanton, 5 Or. 423; Lankford v. Green, 52 Ala. 103. Or an agreement by which the tenant, with permission of the owner, occupied the premises: 52 Eng. Com. L. R. 653; Selbey v. Browne, 7 Q. B. 620; 53 Eng. Com. L. R. 620. But in certain cases a contract may be implied: Osgood v. Dewey, 13 Johns. 240; Abeel v. Radcliff, Id. 297; Porter v. Bleiler, 17 Barb. 149; Ryerss v. Farwell, 9 Id. 615. 21. Implied Demise. The plaintiff need not set forth an implied demise, but may declare for use and occupation, and recover on the special facts shown: Morris v. Niles, 12 Abb. Pr. 103; Waters v. Clark, 22 How. Pr. 104. No tenancy can be implied under a party who has not the legal estate: Morgell v. Paul, 2 Mann. & R. 303. But it would appear that one occupying and paying rent to an apparent proprietor as his landlord, cannot, when sued, allege that he has only the equitable estate: Dolby v. Iles, 11 Ad. & E. 335. 22. Improvements.-A defendant who entered under a bond for a deed from the plaintiff, cannot set off his improvements against the damages for use and occupation: Kilburn v. Ritchie, 2 Cal. 146. 23. Indebtedness.-An averment of use and occupation as tenant is a sufficient averment of indebtedness: Walker v. Manroe, 18 Mo. 564. 24. Interest.-Interest may be recovered on a claim for use and occupation, after demand: Ten Eyck v. Houghtaling, 12 How. Pr. 523. 25. Parties.-The grantee of demised premises, on the reversion thereof, is the proper party to bring suit for the recovery of rent which accrued and became due before, and, a fortiori, after the conveyance to him. After such conveyance, an action by the grantor for rent cannot be sustained: Anderson v. Treadwell, 1 Edm. 201. Tenants in common may join in an action for use and occupation without showing a joint demise: Porter v. Bleiler, 17 Barb. 149. So, in England, an infant can also maintain this action although he has a general guardian: Id.; and see Fitzmaurice v. Waugh, 3 Dowl. & R. 273; 16 Eng. Com. L. R. 169. 26. Permission Shown. The plaintiff must show that the defendant used and occupied the premises by the permission of the plaintiff: Sampson v. Schaeffer, 3 Cal. 196; Hathaway v. Ryan, 35 Id. 188. 27. Possession, when Adverse.-If the occupation was contrary to the owner's will, his action must be for damages: Smith v. Stewart, 6 Johns. 46; Bancroft v. Wardwell, 13 Id. 489; Hall v. Southmayd, 15 Barb. 32. If the complaint shows that the occupation was a trespass, it is of course bad on demurrer: Hurd v. Miller, 2 Hilt. 540. Authorities upon this point are hardly necessary. 28. Separate Demands.--In New York in an action for use and occupation, demands for rent which accrued in the lifetime of a decedent, and for rent accruing after his decease, while the tenancy was continued by the executors on account of the estate, are properly joined as one cause of action, against the executors as such; Pugsley v. Aiken, 11 N. Y. 494. 29. Tenant at Will.-If a party enters upon land which he has con tracted to purchase, with the consent of the vendor, and the contract falls through because the purchaser fails to pay as agreed, the vendor may treat him as a tenant at will, and may bring assumpsit for use and occupation, or it seems he may maintain trespass: Woodbury v. Woodbury, 47 N. H. 11. After the determination of a tenancy at will by notice, assumpsit for use and occupation lies against the tenant, if he holds over: Hogsett v. Ellis, 17 Mich. 351; 3 Am. Law Rev. 757, 758. 30. Title.-It seems that in this action plaintiff need not aver title, and the defendant cannot object to his title: Vernam v. Smith, 15 N. Y. 329. The plaintiff complains, and alleges: I. That from the........ day of........, 187., until the .day of..... 187., defendant occupied certain rooms in the house [No. 54 .. ....street, city of........, by permission of the plaintiff, and was furnished by the plaintiff, at his request, with food, attendance, and other necessaries. II. That in consideration thereof, the defendant promised to pay [or the same was reasonably worth] the sum of .dollars. III. That defendant has not paid the same. [Demand of Judgment.] 31. Allegation for Lodging.-That the defendant occupied rooms in, and part of the house of the plaintiff, at........ [and if furnished, add, together with furniture, linen, and other household necessaries, of the plaintiff, which were therein], by the plaintiff's permission, as his tenant, from, etc. [TITLE.] No. 184. X. For the Hire of Personal Property. The plaintiff complains, and alleges: I. That between the......day of......, 187., and the .day of. . . . . . ., 187., the defendant hired from the plaintiff [horses, carriages, etc.], for which he owes the plaintiff, on an account thereof, the sum of... . . . . . dollars, which was payable on the......day of..............., ..., 187.. II. That the defendant has not paid the same [or that no part of the same has been paid, except the sum of, etc]. [Demand of Judgment.] 32. Facts.-Facts on which the amount of compensation depends must be set forth: Relyea v. Drew, 1 Den. 561. 33. Hired, implies a request: Emery v. Fell, 2 T. R. 28. |