The court ruled that, upon the undisputed, evidence, the plaintiff was entitled to recover. Upon the facts in proof, this ruling could only rest upon one of two grounds,, either that the defendants were or.had been “lessees,” withim the meaning of the statute, or else that they unlawfully held possession of the premises by force. We must examine these two grounds in order.
1. By the Pub. Sts. c. 175, § 1, the special summary process for the recovery of land is authorized “ when the lessee of lands or tenements, or a person holding under such lessee, holds possession without right after the determination of a lease.” The defendants were in possession of the premises under an agreement by which they were to purchase the same, and they bad paid a part of the purchase money. They had no written agreement, or other instrument in writing, signed by the grantor, that they should have possession until a deed should be given, and their estate or interest therefore had the force and effect of an estate at will only. Pub. Sts. c. 120, § 3. Assuming that this estate or interest was duly determined by the execution of the
*546lease from the owner to the plaintiff, the question still remains whether they are subject to this special statutory process for their ejection. It was declared in Howard v. Merriam, 5 Cush. 563, 583, that, to sustain a complaint on this branch of the statute, the defendant must have stood in the relation of a lessee of the premises, under either a written or an oral lease, or in the relation of a person holding under such lessee, who should hold the demised premises without right after the determination of the lease. And in Dakin v. Allen, 8 Cush. 33, it was expressly decided that a person in possession of an estate under a bond from the owner conditioned to convey the estate to him on payment of his note for a certain sum with interest semiannually, was not liable to this process on a failure to pay the interest; the ground of the decision being that the defendant was not and had not been the lessee of the estate* and did not hold it under a lessee, or as demised premises, within the meaning of the statute, and that the statute providing for a summary process in such case refers -to the case of a lessee and an actual demise. This decision has never, been overruled; but, on the other hand, it has received recognition or support in several other decisions. Larned v. Clarke, 8 Cush. 29. Hastings v. Pratt, 8 Cush. 121. Dunham v. Townsend, 110 Mass. 440. Gerrish v. Mason, 4 Gray, 432. A person in the position of the defendants has often been called a tenant at will, in a general way, but not a “ lessee ” within the meaning of the statute providing this summary remedy. In the recent case of Lyon v. Cunningham, 136 Mass. 532, -it was explained that, though such a person’s right is not greater than that of a tenant at will, and though he is therefore often called a tenant at will, yet he is not to be regarded as a lessee for all purposes; and that, if the negotiation for the purchase of the land fails, he is not necessarily to be held liable on an implied assumpsit for use and occupation, or liable to the special summary process provided by statute for the recovery of land which is held over by a lessee without right after the determination of a lease ; and the distinction was pointed out between such a case and the case of one who enters into possession under an agreement for a lease. In Lawton v. Savage, 136 Mass. 111, the point now under consideration was not taken by the counsel for the de*547fendant upon his brief, nor specifically dealt with by the court, and that decision was not intended to overrule Dakin v. Allen. We ave therefore brought to the conclusion, that, upon the undisputed facts, it could not properly be ruled that the defendants were shown to be lessees within the meaning of the statute.
2. Nor could it properly be held that the evidence was sufficient to show clearly and beyond question that the defendants unlawfully held possession of the premises by force. • We need not consider what a jury might have been warranted in finding, upon the testimony. All we have to say is, that the evidence on this point was insufficient to enable the court to take the case from the jury. Saunders v. Robinson, 5 Met. 343. Benedict v. Mart, 1 Cush. 487. Commomwealth v. Shattuck, 4 Cush. 141. Larned v. Clarke, 8 Cush. 29.
3. There is a further small question as to the jurisdiction of the police court to try the case. But of this there is no doubt. Neither party requested the police court to remove the case to the Superior Court, and no order for its removal was passed. The police court, therefore, retained its jurisdiction. Pub. Sts. c. 155, § 24; c. 175, § 8.
New trial ordered.