By the Oourt.
Starnes, J.delivering the opinion.
[1.] In the progress of this cause, the testimony of Allen Johnson and Leyman H. Barnes, taken by commission, Avas offered by defendant in the Court beloAV, and ruled out by the Court, on the ground that it was an effort to prove title to real estate by parol.
We are of opinion, that the Court did not draw the correct distinction Avhen thus ruling.
This was an action for use and occupation; and the relation of landlord and tenant, between the parties, is necessary to sustain such an action. 1 Chitty Ch. P. 121. 1 T. R. 378, 386, 387. Lord Ray, 1216. Bac. Abr. Ass. A. 2 H. Black 319. 10 Mass. 436. Cummings and Wife vs. Noyes.
When a party enters under contract for a purchase, this agreement destroys the relation of landlord and tenant, and is entirely inconsistent with it. 2 Taunton R. 145. Smith vs. Stewart, 6 John 46. Bell vs. Ellis’ heirs. 1 Stew, and P. 296.
Any proof then, in this case, which went to show, that the relation of landlord and tenant between these parties did not exist, and that possession was taken under an agreement to purchase, was proper.
Such was the testimony offered, and it Avas good and legal testimony to prove the non-existence of the aforesaid relation, though not proper proof to establish title to real estate.
The distinction which Ave draw, may be thus illustrated: In an action of ejectment, the title cannot be proven by parol, *134nor the surveyed lines by any but an expert; yet parol testimony is admissablc to show that the lands adjoining the locus are owned by A. B. and C. ; or that a town lot is bounded by the lots of A. B. and C., because this testimony is offered, not in proof of the title or of survey, but simply as a clesignatio loci,
[2.] The plaintiff in error, as defendant in the Court below, filed a set-off to the action against him, in which he asked to be allowed the value of certain improvements, which he had put upon the premises, an account of which he filed. And he alleges as error the refusal of the Court, to charge that he was entitled to be allowed this set-off in this action.
We do not agree with the plaintiff in error. Every man builds on the land of another at his own risk, who builds without the consent of the landlord directly or indirectly given. If relying on a parol agreement -which vested no title in him, the plaintiff in error proceeded to erect improvements upon this lot, he has at Law no cause of action against the owner, on this account. But, if relying confidently upon the agreement, he in good faith put up these improvements, which are greatly to the benefit and advantage of the landlord, Equity may, perhaps, on a proper case made, afford relief.
[3.] Absalom. Jordan, one of the witnesses, proved that the agreement was; that the plaintiff in error was to pay the same price, as that for which the lot was rented the previous year, if the defendant lost the place, and could not make titles to him.
If this were true, the payment of rent depended on this loss of the place, as a sort of condition precedent, and the plaintiff in error was not liable in an action against him until the happening of this contingency was alleged and proven.
He was entitled, therefore, to ask of the Court a charge to this effect. This he did substantially, or at all events he invoked instructions from the Court, in such manner, as made it proper for the' Court thus to charge the jury. But this was not done, and in this we think there was error.
Let the judgment bo reversed.