This action has been dismissed by the superior court for want of jurisdiction. As a complaint under the Gen. Sts. c. 137, that court would not have jurisdiction of the proceeding; but it was submitted upon an agreed statement of facts, and- all questions as to the sufficiency and accuracy of the pleadings are expressly waived by the parties. The question is thus presented whether the action could be maintained under any form of pleading. Esty v. Currier, 98 Mass. 500. Folger v. Columbian Insurance Co. 99 Mass. 267.
In Fay v. Taft, 12 Cush. 448, which was a writ of entry, it appeared that the demandant was entitled to a legal estate in the premises, but it was only a term of years. As it was less than a freehold, the writ of entry would not lie. It is stated in the first edition of that volume of the reports, that the demandant had leave to amend so as to convert the case into an action of forcible entry and detainer. But this is an error, and is corrected in the later editions. An examination of the record shows that leave was granted to amend the writ by changing the same into an *489action of ejectment of a term. Upon filing the amendment, judgment was rendered for the demandant.
- Upon the authority of this decision, the plaintiff may amend his writ accordingly, and recover the term of years to which by the statement of facts he is entitled. For although the land was conveyed to Cynthia Bullock “ in her own right,” yet as the conveyance was made October 19, 1854, her husband took a life estate in it; and the plaintiff had a right to seize the estate on execution and set off a term of years, as he has done.
Judgment for the plaintiff.
The second case was an action of contract, brought in the police court of Haverhill, September 3, 1869, by the same plaintiff against the same defendant, for the use and occupation of the same premises by the defendant after the levy of the plaintiff’s execution thereon in the action for the debt due to the plaintiff’s intestate.
In the superior court, on appeal, the case was stated by the parties, referring to the pleadings, but “ waiving all questions as to their accuracy and sufficiency; ” the facts as to the .conveyance of the premises by Kelly and others to Cynthia Bullock, and the recovery of judgment and levy of execution thereon against the defendant were recited substantially as in the first case; it was set forth that the premises had been occupied by the defendant and his wife Cynthia ever since the conveyance of them to her ; and the statement concluded thus: “ Said levy was made May 31, 1869, and the rents and profits of the premises were thereupon appraised and set off to the plaintiff for the term of sixteen months therefrom, and the plaintiff thereupon notified the defendant that he should claim rent therefor, but the defendant denied that he would pay it. The defendant was never the tenant of the plaintiff, unless made so by reason of said levy. The defendant has never promised to become the tenant of the plaintiff, nor to pay him for the use and occupation of the premises, but has claimed to occupy them under the title of his wife. If upon these facts the plaintiff can recover in this action for use and occupation, or rents, it is agreed that judgment may be en*490tered for the amount claimed; if otherwise, then judgment is to be entered for the defendant.” The superior court gave judgment for the defendant, and the plaintiff appealed.
Merrill, pro se. Noyes, for the defendant. Gray, J.At common law, tenants at sufferance were not liable to pay rent, strictly so called, “ because it was the folly of the owners to suffer them to continue in possession after the determination of the preceding estate.” 1 Cruise Dig. tit. 9. c. 2, §6. 4 Kent Com. (6th ed.) 116. But a tenant at sufferance, occupying by permission of the landlord, was hable, upon an implied contract, in assumpsit for use and occupation of the premises. Ibbs v. Richardson, 9 Ad. & El. 849, and 1 Per. & Dav. 618. Christy v. Tancred, 7 M. & W. 127. Same v. Same, 9 M. & W. 438, and 12 M. & W. 316. If however the facts would not warrant the inference that he ever occupied the premises by contract, express or implied, with the owner, but showed that he asserted an adverse title, he was not hable to such an action. Cripps v. Blank, 9 D. & R. 480. Tew v. Jones, 13 M. & W. 12. Churchward v. Ford, 2 H. & N. 446. Smith v. Stewart, 6 Johns. 46.
In this Commonwealth, it was always held that where the tenant at sufferance had never occupied under the plaintiff or under any party in privity with him, but claimed to hold under an adverse title, the action for use and occupation could not be maintained; because, to support such an action, there must be evidence of a contract or undertaking by the defendant, express or implied; and because, where the defendant had never admitted himself to be a tenant and so estopped himself to deny his landlord’s title, conflicting titles to real estate could not be tried in an action of assumpsit. Allen v. Thayer, 17 Mass. 299. Boston v. Binney, 11 Pick. 1. Mayo v. Fletcher, 14 Pick. 525. Cobb v. Arnold, 8 Met. 398. But it was assumed by Mr. Justice Wilde in Keay v. Goodwin, 16 Mass. 1, 4, and by Chief Justice Shaw in Gould v. Thompson, 4 Met. 224, 228, that either a tenant at will or a tenant at sufferance, occupying by permission of the landlord, was liable to him in an action of assumpsit for use and occupation.
*491In Delano v. Montague, 4 Cush. 42, it was decided, upon excep« tians taken by the plaintiff to the ruling of the court below, that a tenant who, during a lease for a year, made an oral agreement with his landlord for another year’s lease at the same rent, but, before the expiration of the written lease, notified the landlord that he would not carry the oral agreement into effect, and, after the expiration of the written lease, occupied the premises for a few weeks, but did not occupy them intending to occupy under the oral agreement or any agreement with the landlord, was not liable to him for the use and occupation of the premises beyond the time of his actual occupation. At the argument of that case, the defendant contended that upon the facts proved he was not liable in assumpsit for use and occupation for any rent whatever. Upon which Mr. Justice Wilde, in delivering the opinion of the court, after remarking that “ by the common law of England a tenant at sufferance is not liable to pay rent,” and citing Cruise and Kent, ubi supra, simply said: “ But as the defendant did not except to the instructions of the court on this point, the question is not raised, and has not been considered.”
In this state of the law, the legislature inserted -in the General Statutes a section providing that “ tenants at sufferance in possession of lands or tenements shall be liable to pay rent therefor for such time as they may occupy or detain the same; ” and extended to such cases the provision previously applied, by the Rev. Sts. c. 60, § 23, to tenants of part of land demised, namely, that “ such rent may be recovered in an action of contract; and the deed of demise or other instrument in writing, if there is any, showing the provisions of the lease, may be used in evidence by either party to prove the amount of rent due from the defendant.” Gen. Sts. c. 90, §§ 25, 26.
These statutes do not define to whom a tenant, at sufferance shall be liable to pay rent, or by whom he may be sued. In the opinion of the majority of the court, the intention of the legislature was to remove the doubts which had arisen from the opinion in Delano v. Montague, above cited; to prevent any tenant from occupying premises without making compensation to his landlord ; and to declare that an action of contract for use and occu*492potion might be maintained wherever the relation of tenant and landlord, either by lease for years or at will, or permission and assent, express or implied, had existed between the defendant and the plaintiff, or between the. defendant and any person with whom the plaintiff was in privity of estate, even if he might not, but for the statute, have been in sufficient privity with the defendant to maintain the action; but not to make the occupant of land liable to an action of contract by a person whose title he had never admitted, expressly or by implication, but had always denied, and whose tenant he had never in any sense been; and that this construction is already established by the cases adjudged since the statute.
Two of these cases, though decided since the statute, were upon facts arising before. In Flood v. Flood, 1 Allen, 217, it was held that a tenant at will, remaining in possession after the determination of the estate at will by the death of his landlord, refusing to pay rent, and claiming title in himself as the landlord’s heir, was not hable to an action by the rightful heirs of the landlord for subsequent use and occupation, before the change in the statute; and it was intimated (which might be more doubtful, in view of the cases above cited) that before such change a tenant at sufferance would not have been hable to the action under any circumstances. In Kittredge v. Peaslee, 3 Allen, 235, also, it was held that oné occupying land adversely to the right of the plaintiff, and claiming in good faith to hold it under a title derived from a third person, was not hable to the plaintiff in an action for use and occupation ; and it was not suggested that the statute had varied the rule as between such parties.
The two remaining cases arose since the General Statutes took effect. In the one, where by a deed from the landlord to a third person an estate at will was determined, and the person who had been tenant at will of the grantor thus became a tenant at sufferance, it was held that he was hable to his landlord’s grantee in an action under the statute, the court saying that in such a case the statute created the privity and gave a cause of action. Bunton v. Richardson, 10 Allen, 260. In the other, after the determination of a written lease, the tenant’s wife occupied the *493premises under her husband, claiming to occupy under an agreement with him, and denying his lessors’ title; it was held that she was not hable to an action by them under the statute; and Mr. Justice Hoar, in delivering judgment, said: “ An actio a in the nature of assumpsit for use and occupation depends upon a contract, express or implied. The defendant made none with either of the plaintiffs ; never held as them tenant; denied their title ; and occupied only in right of her husband.” Knowles v. Hull, 99 Mass. 562.
The case now before us is not distinguishable in principle from that just cited, and is governed by the same reasons. The deed of the premises to the defendant’s wife, having been made before the St. of 1855, e. 804, and not being in terms to her separate use in accordance with the St. of 1845, e. 208, the husband was indeed entitled as at common law to the rents and profits; and the plaintiff by the levy of his execution against the husband has had the rents and profits set off to him for a certain period. Gen. Sts. e. 103, §§ 11, 12. Barber v. Root, 10 Mass. 260. Clapp v. Stoughton, 10 Pick. 463. Staples v. Brown, 13 Allen, 64. Dunn v. Sargent, 101 Mass. 336. But the defendant never made, and could not legally make, any contract with his wife. Miller v. Lang, 99 Mass. 13. Knowles v. Hull, Ib. 562. He never made any contract, express or implied, with the plaintiff, or with any one in privity of estate with him; never held as his tenant; denied his title; refused to pay him anything by way of rent, or for the use and occupation of the premises ; and claimed to occupy them in right of his wife, and adversely to the plaintiff. He is not therefore liable in this action.
The plaintiff must seek his remedy, either in the action of ejectment pending between these parties, or by an action of tort in the nature of trespass for mesne profits after recovering judgment in ejectment or entering on the premises. Sargent v. Smith, 12 Gray, 426 Northampton Paper Mills v. Ames, 8 Met. 1.
The question submitted to the decision of the court is expressly limited by the terms of the case stated (differing in this respect from the other suit between these parties) to the right to recover in this form of action; and as this action cannot be maintained, the defendant is entitled to judgment.