On the motion to set aside the Chief Justice said he doubted extremely whether in any case the plaintiff could recover. If no money had been paid, he said, it might perhaps be a different question, but if one paid his money and took possession, he asked:
'Is it not just that one party should take back his money and the other take back his house?'
On the other hand, Howard v. Shaw, in the English Exchequer, is in our favor. There the defendant had entered into possession under a valid contract to purchase, and deposited part of the price. He afterward took advantage of some dispute to demand back his deposit, and received part, but not receiving the whole kept possession, until an action of ejectment was brought against him, when he surrendered the premises. The vendor then sued for use and occupation. At the trial the point was made by the defendant that the action could not be maintained, because the relation of landlord and tenant had never existed; and the Chief Baron being of that opinion, nonsuited the plaintiff. Upon rule being moved for, to set aside the nonsuit and enter a verdict, the Chief Baron said he had entertained doubts, but was satisfied the plaintiff ought to recover; that 'while the defendant occupied under a valid contract for the sale of the property he could not be considered as a tenant.' He goes on:
'But what is the relation of the parties when the contract of sale has gone off? The defendant remains in possession with the consent of the landlord, but without any title to or contract to purchase the land. Under these circumstances he is a tenant at will, and if the occupation is beneficial to him, that is sufficient to imply a contract to pay a reasonabe sum by way of compensation for such occupation.'
Baron Parke was of the same opinion. Baron Alderson said on the point:
'While the defendant was in possession under this contract for sale, he was a tenant at will under a distinct stipulation that he should be rent free, therefore for that term no action for use and occupation can be brought against him, but when that contract is at an end, he is a tenant at will simply: therefore from that time he is to pay for occupation.'
Baron Rolfe concurred; and the rule was made absolute.
The Court of Claims, in its opinion, assumes that the defendants entered under 'a contract' of purchase, and that this 'contract' was finally consummated when the 'statutory obstacles' were removed.
But there was no such 'contract.' Carpenter offered to sell the land, but there was no one to buy; no one to agree to buy. Carpenter never was bound to convey, for there was no one to whom he could be bound. The contract was not 'consummated' in 1866; it was but made in 1866. Carpenter's offer was a continuing offer, which he could have withdrawn at any time, and it was not accepted till 1866. There was no statutory obstacle 'removed,' but statutory power was given. The act of May, 1820, was not repealed, nor its provisions suspended; they were complied with.
Mr. S. F. Phillips, Solicitor-General, contra.
Mr. Justice STRONG delivered the opinion of the court.