The possession of the land for the use and occupation of which during part of the year 1910 the defendant was sought to be made liable Avas acquired by him from one Scott, Avho held it under a rental contract entered into by him with the plaintiffs. Under the evidence in the case the defendant cannot be held liable as the assignee of that contract,, as the evidence, without conflict, showed that he never agreed to be bound by its terms. On the contrary, he expressly
Under the evidence it Avas. a question for the jury Avhether the plaintiffs accepted and looked to the defendant as their tenant in the place of Scott, though the defendant did not assent to the terms of Scott’s rental contract. They could not sustain the inconsistent claims that Scott remained their tenant under his contract and that at the same time they accepted the defendant as a substituted tenant under a different contract. The parts of the oral charge bearing upon this inquiry to which exceptions were reserved were free from error.
To support the statutory action for the use and occupation of land, the defendant must either have gone into possession of the land unlaAvfully, thereby subjecting himself to such liability under the fourth subdivision of the statute (Code, § 4753), or he must have been a party to a contract, express or implied, creating between him and the one seeking to hold him so liable the technical relation of landlord and tenant, or a relation importing like rights and duties. — Burgess v. American Mortgage Co. of Scotland, 115 Ala. 468, 22 South. 282; Grady v. Ibach & Co., 94 Ala. 152, 10 South. 287; Mooty
Scott’s rental contract, which is not claimed to have contained a provision against subletting, vested him Avith such a right to the land as to entitle him to let the defendant into the possession of it without the latter becoming the assignee of that contract. The statement of this obvious proposition discloses a fault in each of the refused charges referred to in the fifth and sixth assignments of error.
Affirmed.