APPEAL from the Court of Claims; the case as found by that court having been thus: In July, 1863, Major Hunt, of the corps of engineers, entered into negotiations with one Carpenter, owner of an island in Narragansett Bay, for the purchase of it by the United States for military uses; and a parol contract for the purchase and sale was then formally concluded; the terms being approved by the Secretary of War. The price, as stipulated, was $21,000. In August following, the officers of the government, with the consent of Carpenter, entered into possession of the island and began to prepare for fortifying it. The possession then taken they have ever since retained. Upon examination, however, it was found and so reported by the Attorney-General, that under an act of May 1st, 1820,*fn1 an executrive department had by law no authority to purchase land on account of the government. Consequently the verbal arrangement with Carpenter remained unconsummated, until 1866. On the 12th of June, of that year, Congress made an appropriation for the purchase of sites then occupied, and proposed to be occupied for sea-coast defence, and on the 7th of August next following, the purchase-money of the island ($21,000) was paid to Carpenter, and accepted by him without any claim for interest or rents, so far as it appeared, and he delivered a deed for the property to the United States. In this state of things Carpenter now, December 7th, 1867, filed a petition in the Court of Claims, claiming compensation from the United States for the use and occupation of the island from the time the United States officers, with his consent, took possession, after the verbal arrangement to purchase, until the deed was made and the purchase-money was paid, that is, from August, 1863, to August, 1866. The question was whether, upon the case stated, an action for use and occupation could be sustained. The Court of Claims, as appeared by its opinion,*fn2 considered that the law (i. e., the statute of 11 George II, chapter 19, § 14) which gives the action for use and occupation always required that some contract of demise should subsist; in other words, that the relation of landlord and tenant must be established;*fn3 that there was no such relationship here. That independently of this the claim rested on an implied contract, but that where there was an express contract to buy, a contract to pay rent could not arise by mere inference. Relying on these views, and citing the English case of Kirtland v. Pounsett,*fn4 it accordingly decreed a dismissal of the petition. From that decree the claimant appealed.
The opinion of the court was delivered by: 'Mansfield, C. J., at first inclined to think the action might be supported; for that if a man had contracted for the purchase of an estate of the annual value of many thousand pounds, and had through the imprudence of the vendor been permitted to take possession, which he might possibly retain for several years pending the discussion of the title in a court of equity, it would be strange if the purchaser could hold possession and receive the profits during all that time without paying any consideration for it to the vendor. But upon the ground that during all the defendant's occupation of the premises the plaintiff had been in possession of the purchase money, of which he had made or might have made interest, the Chief Justice directed a nonsuit, with liberty to move to set it aside.'
Messrs. J. M. Carlisle and J. D. McPherson, for the appellant:
The right to sue for use and occupation does not rest, as the court below assumed, on the statute of 11 George II. It existed previously; though until the passing of the statute mentioned the plaintiff was nonsuited, if a demise was proved.*fn5
Use and occupation may well lie without a demise.
The English case of Kirtland v. Pounsett, cited by the Court of Claims, does not apply. The report says:
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,*fn6
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 ...