This is an action to recover for the use and occupation of premises, and cannot be maintained, unless the relation of landlord and tenant existed between the parties, by virtue of some agreement, either express or implied. At common law, an action of assumpsit for rent would not lie, except upon an express promise made at the time of the demise. But by our statute, an action on the case was authorized, to recover a reasonable satisfaction for use and occupation by a person under any agreement, whether by deed or parol. (1 R. S. 748, § 26.) Under this statute it has been uniformly held, that in order to maintain the action for reasonable satisfaction for use and occupation, the conventional relation of landlord and tenant must exist; and that unless that relation exists between parties, there is no implied promise, or obligation, to pay for use and occupation. Where the defendant occupies under an agreement to purchase, he is not a tenant, but a vendee, and the relation is that of vendor and vendee, and in no conventional sense that of landlord and tenant.
In the case of Smith v. Stewart, (6 John. 46,) the defendant went into possession under a parol agreement to purchase, and after occupying several years, refused to complete his purchase, and take a deed. He had paid nothing, but had occupied the premises and made improvements thereon;. and it was held that the action for use and occupation could not be maintained, because the relation of landlord and tenant did not exist. The court, in that case, said that by refusing to perform his agreement, he had changed himself into a trespasser, and was liable to be turned out as such, and made responsible in that character for mesne profits. The action for mesne profits differs, from an action for use and occupation, in this, that the *478latter is founded upon a promise, express or implied, while the former springs from a trespass, an entry vi et armis, upon premises, and a tortious holding.
The action to recover mesne profits is an action quare clausum fregit, and cannot be maintained without proof of the trespass. (Till. Adams on Eject. 328, 331, 338. 3 Black. Com. 205. Bac. Ab. tit. Ejectment, h.) It is founded on the action of ejectment, generally, and follows a recovery in that action. It is said, however, by Cowen, J., in Leland v. Tousey, (6 Hill, 328,) that mesne profits were the subject of an action, where the plaintiff had obtained possession without suit; and this may perhaps be so. But in order to recover in such,a case, where the relation of landlord and tenant did not exist, it would be necessary for the plaintiff to prove the tortious holding. Here the relation of landlord and tenant did not exist, and there has been neither a tortious entry, nor a tortious holding, by the defendant. He went into possession by virtue of a parol agreement with the plaintiffs to purchase, and has been willing to pay substantially according to the agreement, as the testimony on both sides tends to show. The defendant quit the premises, because the plaintiffs refused to allow him to perform his agreement, or to accept performance on his part. Such is, at least, the tendency of the evidence. The defendant in this case, as in the case of Smith v. Stewart, (supra,) entered under color of title which he might have enforced in equity. But he never became a trespasser, as did the defendant in that case, by refusing to perform his agreement. It is the plaintiffs here who have violated the agreement, and they cannot, by their own wrongful act, convert the defendant either into a trespasser or a tenant. If they could do this, they would acquire a right of action by means of their own wrong, which the law will never allow. Whether, therefore, this is to be regarded as an action for use and occu*479pation, or an action for mesne profits, it cannot be sustained upon the evidence.
[Fourth Department, General Term, at Rochester, September 4, 1871,The fact that actions of trespass for mesne profits were abolished in this State by the Revised Statutes, and another mode of recovering such damages adopted, does not affect the question we have been considering.
The cases holding that, in order to entitle a party to recover for use and occupation, the relation of landlord and tenant must have existed between the parties, are very numerous in this State, and are quite uniform. The case of Sylvester v. Rawlston, (31 Barb. 286,) is quite in point, if not entirely decisive of this case.
The court charged the jury that the agreement under which the defendant entered, for the purchase of the land, being void, the plaintiffs were entitled to recover the fair value of the use of the premises. This was error, and the exception to the charge was well taken. The right of action, either for use and occupation, or for mesne profits,' as we have seen, depends upon other considerations.
^ The exceptions are also well taken to the refusals of the court to charge as requested. Each request embodies a correct legal proposition, applicable to the case upon the evidence, and should have been complied with.
The judgment must, therefore, be reversed, and a new trial ordered, in the county court, with costs to abide event.
Mullin, P. J., and Johnson and Talcott, Justices.]