Vhay v. Gies , 236 Mich. 545 ( 1926 )

Plaintiff brought an action of assumpsit to recover certain rents for use and occupation. He had judgment. Defendant assigns error on the ground that she was entitled to a directed verdict.

It appears that defendant took charge of certain real estate which belonged to the deceased under a claim of right given by two deeds and a will. The deeds were set aside (Vhay v. Gies,218 Mich. 394). Later the will was set aside (In re Vhay'sEstate, 225 Mich. 107). This suit was brought to recover for the rents which she collected while in possession of the property under the deeds and will.

The point is made that no recovery can be had in assumpsit for use and occupation unless there is present a contract. We think the point is well taken. Lockwood v. Thunder Bay RiverBoom Co., 42 Mich. 536; Doty v. Gillett, 43 Mich. 203; Smith v.Haight, 188 Mich. 512.

In the first case cited the rule is stated as follows:

"It has been uniformly held in this State that an action for use and occupation will not lie except where a contract relation exists of landlord and tenant, by virtue of which an obligation exists to pay rent. Dwight v. Cutler, 3 Mich. 566 (64 Am. Dec. 105); Hogsett v. Ellis, 17 Mich. 351;Dalton v. Laudahn, 30 Mich. 349; Wilmarth v. Palmer, 34 Mich. 347; Marquette, etc., R. Co. v. Harlow, 37 Mich. 554 (26 Am. Rep. 538). While there are some cases in which tort may be waived and assumpsit brought, this doctrine has not been applied to trespass on lands except under a statute which will be presently referred to. Usually no adverse relation can be turned into a contract relation, express or implied."

During the time the litigation over the deeds and will was pending defendant had possession of the premises, but her possession was not due to any contract, but to a claim of ownership under the deeds and will. When the litigation was concluded, if defendant refused to surrender possession ejectment, not summary proceedings, was the proper remedy, and the subsequent filing of a claim in the same case for the rents and profits of the premises (3 Comp. Laws 1915, §§ 13203, 13204). The trial court should have directed a verdict for defendant.

Judgment should be reversed, with costs to defendant.