delivered the opinion of the court. Heydenfeldt, Justice, concurred.
The action ir. the court below, was brought to recover $1400, for the alleged ise and occupation of certain premises in Marysville, by the defendant, “at his request, and by the permission of the plaintiff," iron March 1, 1851, to May, 1852. The defendant in his answer denies all indebtedness for the alleged use and occupation by him of the premises, and denied that he used and occupied them by tie permission of the plaintiff.
The legality of tie plaintiff’s title is not in issue. The plaintiff could not prevál upon it in this action, if it were valid; neither could the dtfendant dispose of it, if it were not; and whether it belongs to one or the other could not be tried in an action to recover red; for use and occupation. “Indebitatus assumpsit for rent, wih not lie in favor of a stranger for the purpose of trying his title; or by one of two litigant parties claiming the land: this actim depending not upon the validity of the plaintiff’s title, but on acontract, express or implied.” So it was *202expressly said in Boston v. Brinley, 11 Pickering, 1, and Codman v. 14 Mass. R. 96, and the rule is sustained by cases there cited. The plaintiff alleges a contract, express or implied, by the averment that the use and occupation of the lot in question, by the defendant, was “ at the request of the defendant and by the permission of the plaintiff,” and having thus alleged a contract, he can only succeed by establishing one. The use and occupation of the land claimed by plaintiff creates a presumption of a contract; the defendant may rebut this presumption Try proof that the possession was adverse: this case does not depeml, therefore, upon the question, whether the claim of the plaintif, as heir of John Sampson, deceased, was sufficiently established, or whether the decree of the probate court was conclusive, <¡r whether there were other heirs, nor will it turn upon the objection raised of a defect of parties: that objection not having been taken by the answer, it must be deemed to have been waive!, and could not be raised upon the trial. Practice Act, Title IV s. 45.
The correctness of the judgment is involved in fhe other propositions advanced by the appellant, and the question we now propose to examine is, whether the plaintiff car recover upon mere occupancy without permission of the plaintff, and against his will ?
The record discloses, that the defendant ard one Hall took possession of the lot in controversy in Feb., B50, and that defendant has been in possession ever since; Hdl having sold out his interest to him in May, 1851. The plairtiff endeavored to show ‘a tenancy existing on the part of the deendant under John Sampson, who, it is said, became proprietor jf the land in 1849, and who died in September, 1850; conflictiig testimony was introduced upon this point, but whether the weight of it went to sustain this position or not, it is no part of our present purpose to say, as that was within the province of the jury, and should have been left to them to decide; the fací however, was controverted by the defendant. The plaintiff chimed to be the rightful heir of the estate of John Sampson, and h appears from the evidence of his own witnesses, that he attenpted to oust the defendant from the premises by legal proceedngs in May, 1851. It appeared further, that there had been corsiderable litigation be-*203In thus refusing j tween the parties relative to the possession of the land. At the proper time, during the trial of the cause, the defendant requested to give the jury certain instructions, and among others the follow- » ing: “ First, that it is necessary, to enable the plaintiff to recover ] for the use and occupation of the premises, that he should show that the defendant used and occupied them by the permission of the plaintiff, and that if the jury believed that the defendant used and occupied the premises against the will of the plaintiff, then they must find a verdict for the defendant.” The court refused so to instruct the jury, and the defendant excepted, the learned judge erred.
At common law, no action of assumpsit for rent would lie ex-) cept upon an express promise; the right to maintain such action upon an express or implied contract was given by the Statute of 2 Geo. II. c. 19, s. 14, which has since been adopted as part of the common law; but this statute, from the terms of it, seems only to apply to the case of a demise, and where there exists the relation of landlord and tenant, founded on some agreement creating that relation. This rule of the common law, and. the construction of the statute of Geo. II. have, in modern times, undergone many important modifications, and the general rule, as at present established, and confirmed by an abundance of authority, we conceive to be as we have already intimated, and (as more definitely stated in 2 Nott & M’Cord’s South Car. R. Ryan v. Made, and in Espinasse’s Dig. 57), comes to the conclu- _ sion, “ That no action for use and occupation will lie when possession has been adverse and tortious, for such excludes the idea of a contract, which, in all cases of this action, must be expressj or implied.”
This is undoubtedly the correct, as wpll as the general rule, and is fully supported by the case of Bevil v. Wright, 1 Tenn. Rep.; Durnford v. Easts, 378; Smith v. Stewart, 6 John. Rep. 46; Wharton v. Fitzgerald, 3 Dall.; and innumerable cases cited by these authorities.
The plaintiff does not claim for rent during the lifetime of John Sampson, nor does he rely solely upon the alleged tenancy under him in his lifetime, or the continuance of such tenancy after his death; and if he did, the rule would be none the less applicable, *204but the plaintiff seeks to recover for use and occupation merely, and claims the right to do so, even though such use and occupation was without his permission and against his will. Even had the defendant held as tenant under John Sampson in his lifetime, his refusal to recognize the plaintiff as his landlord terminated the tenancy, and overweighed the presumption of a contract between him and the plaintiff; there was no longer either privity of estate or contract between them, but as was said in the decision of Balls v. Westwood, 2 Comp. 11, cited by Justice Put-ham, in Boston v. Brinley, 11 Pick. 8, “ He renounced the plaintiff’s title, divested himself of the possession obtained under the plaintiff, and commenced a fresh holding under his own alleged title.” “ There was nothing in this conduct which can warrant the inference of holding over at sufferance, even if there had been a prior holding as tenant for a certain time.” It was not the mere unexplained holding over of a tenant of which we read in the books. Coke, Lit. 57.
“All that the law requires is, that during the time when the tenant actually holds by permission of his landlord, the landlord’s title shall not be disputed. But when he ceases to hold in that relation, he may commence upon an adverse title, after the expiration of the lease.”
Again, in Featherstonaugh v. Bradshaw, 1 Wend. 134; and in Bancroft v. Wardwell, 13 Johns. R. 134, the doctrine is repeated, that the action can only be maintained when the relation of landlord and tenant exists between the parties; it has been held that it would not lie against a person who came in under the plaintiff’s title as a purchaser, 2 Johns. C. 335; Woodfall, 350.
But it is said, “ that the statutes of California have abolished the distinctions existing at common law,” and that technicalities and mere forms are to be disregarded by our courts; “ that substantial rights are regarded, and not the shadows of a case.” It is indeed true that distinctions in mere forms of pleading are abolished, but the common error is to mistake substance for form. It is because substantial rights are regarded, that this court will suffer none to recover upon a mere “ shadow of a case,” nor permit a plaintiff on one day to attempt to oust a defendant upon *205the ground that he is a trespasser, and on the next to recover for rent upon an implied contract, on the ground that he is occupying with his permission; “ for that,” to use the language of the Court of King’s Bench, in Birch v. Wright, “ would be blowing both hot and cold at the same time, by treating the possession of the defendant as that of a trespasser, and that of a lawful tenant during the same period.”
The effect of the point raised by the respondent would be to say, that as all technical forms are abolished, the plaintiff can recover in an action brought upon an alleged contract, whether the defendant be a lawful tenant or a trespasser ; and if he is not proven to be one, he must necessarily be the other: such would indeed be the case if he could recover upon mere occupancy; or perhaps the respondent intends to say that the plaintiff may waive tort and maintain assumpsit. But the defendant has then a right to say to the plaintiff, “ There has been no tort; you, having nothing to waive, the land is mine, not yours.” And whether it belongs to one or the other, we could not try it in an action for rent for use and occupation, as we have already seen from the cases above cited from 11 Pick. J., and 14 Mass. R.
It is a gross error into which many have fallen, to suppose that because the Practice Act abolishes the distinctions in the forms of action, it is immaterial what the substantial allegations of pleadings are, or that all the distinctions which the law makes in the causes of action are swept away. While the mere forms of pleadings are simplified, the body of the law is preserved with all those general principles, those wise distinctions, those strict principles and unerring rules, those sound and logical conclusions, which constitute its justice and justifies its glory as a science.
The plaintiff is not without a remedy. If he has any title to the premises, the defendant is liable to be turned out as a trespasser, and is responsible in that character for the mesne profits, or more properly in an action brought under the 64th section of the Practice Act to recover the property, with or without damages, for the withholding thereof, or for waste committed thereon, or for the rents and profits of the same, but not in an action like the present, upon contract, unless he can show that the defendant used and occupied the premises, not adversely and *206against his will, hut with his permission and as his tenant, and that is a proper question for a jury to pass upon.
We do not deem it necessary to decide the other point raised by the appellant, viz., “ that .the court erred in refusing to allow the defendant to prove the finding of the jury in the forcible entry action in the County Court,” further than to intimate, that it doth not appear from the record, that the defendant had properly prepared the way for the introduction of such proof by parol; nor doth it appear that upon these findings judgment was finally entered.
The judgment of .the court below is reversed, and a new trial ordered.