448 AGREEMENT VOID BY FEAUD. 



only been a notice to pay rent to the plaintiff, but the defendant had 

 afterwards paid rent to him ; and the Court were in en'or in saying that 

 to give an action for use and occupation, the relation of landlord and 

 tenant need not subsist between the parties. Tlie ivord "■ landlord " 

 v)i2)Jies not tJie mere lordship or owrm'sMp of the soil, iut tJie relationship 

 to a tenant. 



Use and occupation arc not maintainahlc where the, express agreement 

 is void hij reason of fraud. But the plaintiff having paid the rent to 

 the superior landlord, Wight man J. directed a verdict for the plaintiff 

 on the count for money paid. And per Wightman J.: "The ft-aud 

 destroying the express agreement between the parties, there can be no 

 implied contract ; and use and occupation are not maintainable with- 

 out a contract " {Davg v. CraclnicU) ; and it is some evidence to go to 

 tliejury in support of a count for use and occupation that a fixed pay- 

 ment has been made for many years in respect of the land in question 

 by the defendant to the plaintiff, the defendant abstaining from all ex- 

 planation of the origin or grounds of that payment, which it seemed 

 he was able to give {Hardon v. HesTcett). 



Where the circumstances icarrant an inference in fact, that it ivas agreed 

 by both 2)laintiff and defendant at the time of the execution of the instru- 

 ment, that it should not operate as a lease until the payment of tJie balance 

 of an agreed sum for fixtures, though no express words of delivery as an 

 escrow were used, it did not operate as a deed till then ; and therefore 

 the defendant was held to be tenant from year to year under the terms 

 in the instrument, and not tenant under a deed, and an action for use 

 and occupation lies against him or the assignee of his interest {Gudgen 

 V. Besset). 



If A. agrees to M lands to B., tcho permits C. to occupg them, A. may 

 recover the rent in an action against B. for use and occupation {Bull v. 

 Sibbs). 



Receiving the rents and profits from an vnder-tenant, is proof of use and 

 occupation by the person receiving them {Neal v. Stciml) ; and a lessee, 

 whose underlessoe holds over against his ivill after the expiration of the 

 term, is lialjle in this action for the period of the holding over, but not 

 for a whole year's rent {Ibhs v. RirJiardson). Where there is a parol 

 (Umisc to two parties joinllg, and one enters in respect of both, the other, 

 who is not proved to have entered at all, is equally liable to an action 

 for use and occupation {Glen v. Dungeg). 



Wlu'.re a part g is let into possession (f land under a contract to purchase, 

 tvhich afterwards goes off, he is liable to an action for use and occupation. 

 at the suit of tlie vendor, for the period during which he continues in 

 possession after the contract went off {Howard v. Shaw). If he had 



