The opinion of the court was delivered by
Redfield, J.The contract entered into between the defendant and Wood in relation to the purchase of this house and lot, must be considered as binding upon the plaintiffs until rescinded by the defendant, which he did not do until his purchase of the lot of the creditors, and which he might well do, after all title had gone from the plaintiffs.
The statute of frauds does not make contracts, not reduced to writing, for the sale of land, void; but it provides that “no action shall be maintained thereon.” This contract was reduced to writing and signed by one of the parties. Not being signed by the defendant, the plaintiffs could maintain no action thereon against defendant. Some of the cases go so far as to say, that, on that account, the plaintiffs might have rescinded it. But, until the contract was rescinded by one of the parties, it remained in force as a ground of defence in all things done under it. And it is unnecessary to say, that the law will imply no contract where the paities have made an express stipulation. Expressum facit cessare tacitum.
*193The case, then, presents the single question, whether this contract of sale having failed to be carried into effect in consequence of defect or loss of title in the plaintiffs, they can' now recover of defendant for use and occupation, while he was in possession of the premises under the contract of purchase. It is very obvious to the court, that no such action can be maintained in the present case. The case of Hearn et al. v. Tomlin, Peake’s cases, 192, was correctly decided, no doubt. The plaintiff failed to recover, as he should have done. But the reason assigned by the learned judge, who tried the case, seems to have been intended rather to pacify the plaintiff than to justify the decision to the profession, If the defendant had derived no benefit, he could not be made liable in any event. But where he had derived benefit, he could not, on the most favorable view, be made liable, unless he had himself been in fault, as was holden in Hull v. Vaughn, 6 Price, 157. Such seems to have been the doctrine held in Kirtland v. Pounsett, 2 Taunton’s R. 145; Vandenheuvel v. Storrs, 3 Conn. R. 203 ; 2 Greenleaf’s R. 337 ; 13 Johns. R. 489. Although the law will, in many cases, imply a contract to pay for use and occupation of land enjoyed by the defendant, and,,which rightfully belonged to plaintiff, yet, in the absence of all evidence of such occupation being by plaintiff’s permission even, no case has been presented in the argument, which would justify a recovery in the present case. From the great diligence in preparation, manifested on the part of the plaintiff, we are satisfied no such case exists. And we are the more satisfied in this conclusion from our utter inability to conjecture any good basis upon which such a decision could rest.
Judgment affirmed,