The opinion, of the court was delivered-by
Prout, J.This action, which is assumpsit for use and occupation, is apparently within the justic.e’s jurisdiction, as the ad damnum of the process is only ten dollars. But in the justice’s court, the defendant'moved to dismiss the suit, alleging in his -motion, that he (the defendant) was the owner of the premises referred *12to in the declaration; thus raising a question of title, of which it is now insisted the justice had no jurisdiction and the county court no appellate jurisdiction. In Howard et al. v. Ransom, 2 Aik., 252, it is said that the action of assumpsit for the recovery of rent was unknown to the common law; “ that a reservation of rent was regarded as a real contract for which the only remedy was by distress or an action of debt,” unless the occupation was by permission and there was an express promise to pay in consideration of such permission and occupancy. The permission was not equivalent to a lease, or the promise to pay equivalent to a reservation of rent. There is some reason in this distinction as applicable to the present question, although the general rule as now settled is, that the action may be maintained for rent or the use of land, upon either an express or implied promise. In Voluntine v. Godfrey, 9 Vt., 186, the nature of the contract is adverted to. It is said that it amounts to this: in consideration the plaintiff will permit the defendant to possess and occupy, the defendant undertakes and promises to pay. “The plaintiff does permit it without molestation or surrender by the defendant, and this is the substance of the declaration.” The permission and occupancy constitute the consideration, express or implied, to pay. Now what has title necessarily to do with the defendant’s liability under such a contract ? Certainly it is not so directly involved upon the declaration as to oust the justice’s jurisdiction. Jakeway v. Barrett, 38 Vt., 316 ; Powers v. Leach, 22 Vt., 226 ; Judevine v. Holton, 41 Vt., 351.
The case may be disposed of upon another ground. The action for use and occupation implies an occupancy by the defendant under the plaintiff. The fact must be proved to maintain it. The landlord or owner brings his action.to recover the use, and in this case the defendant, not-- having been molested, surrendered the possession, or done any act inconsistent with that relation, sets up in defense and as affecting the jurisdiction of the tribunal before whom it is brought, an adverse title in himself during the time he was permitted and did occupy under the plaintiff. This is not allowed ; the defendant is estopped, as good faith and the true sense of his contract requires, from raising that question. Lord v. *13Bigelow, 8 Vt., 445; Greeno v. Munson, 9 Vt., 37; Barton v. Learned, 26 Vt., 192.
The judgment of the county court is reversed and cause remanded.