By the Court,
Douglass, J.It was formerly doubted whether assumpsit for use and occupation would lie independently of the statute of 11 Geo. 2, ch. 19, which has never been expressly enacted in this State, but the current of American authority is that it is maintainable at common law. (Gunn vs. Scovil, 4 Day, 228; Eppes vs. Cole, 4 Hen. & Munf. 161; Crouch vs. Briles, 7 J. J. Marsh. 257; Pott vs. Lesher, 1 Yeates, 578; Roberts vs. Semel, 3 Mon. 258; Gould vs. Thompson, 4 Metc. 227.) And such, we think, is the better opinion. See contra, Featherstonhaugh vs. Bradshaw, 1 Wend. 135.
The-action must be founded upon contract, express or im*572plied, creating the relation of landlord and tenant,, and im-posing upon the defendant the obligation to pay for the use of the premises. (Tayl. Land. & Ten., § 636.)
On the defendant’s first entry into the possession of the premises, he became the tenant at will of the plaintiff (Gould vs. Thompson, 4 Metc. 224; Ball vs. Cullimore, 2 Cr. M. & R. 120; Right vs. Beard, 13 East. 210; 1 Mees, & W. 700; Doe vs. Jackson, 1 B. & C. 455; Doe vs. Chamberlaine, 5 Ib. 14; Doe vs. Caperton, 9 Carr. & Payne, 112;. Kirk vs. Taylor's Heirs, 8 B. Mon. 262; Tayl. Land. & Ten., § 60;) and during the continuance of his possession, nothing appears to have been done by either of the parties •to determine the tenancy. His occupation having been beneficial to him, that is a sufficient ground to imply a promise • to pay a reasonable sum by way of compensation for such •.occupancy, unless there is something in the circumstances inconsistent with the notion of such a promise, or of an obligation to pay. (2 Steph. Com. 110; Tayl. Land, & Ten., §19; Loft. 103; Hull vs. Vaughan, 6 Price, 157; Howard vs. Shaw, 8 M. & W. 118; Gould vs. Thompson, 4 Metc. 224; Henwood vs. Cheesman, 8 Serg. & Rawle, 500; Logan vs. Lewis, 7 J. J. Marsh. 6; Johnson vs. Beauchamp, 9 Dana, 124; Clough vs. Hosford, 6 N. H. 234; Alton vs. Pickering, 9 Ib. 494; Little vs. Martin, 3 Wend. 219; 12 M. & W. 323; Am. Ed. note.)
•We are. all clearly, of opinion that the plaintiff is.entitled to. recover for the us,e of .the premises^ during the fifteen ■months they were occupied, by the defendant, after all negotiation for the. purchase was at an end, and he was.notified that if he continued in possession any longer, he must pay .rent. To this- extent Howard vs. Shaw, 8 M. & W. 118, is-•directly in point to sustain the present action. ■ There a party who had been let into possession under a valid contract •of purchase which was afterwards abandoned, was held liable to an action, for use and occupation at the. suit of the ven*573dor for the period during which he continued in possession after the abandonment of the contract, Alderson, B., saying: “ while the defendant was in- possession under the contract of sale, he was a tenant at will under a distinct stipulation that, he should be rent free; therefore, for that time, no action for use and occupation can be brought against Mm; but when that 'contract íb at an end, he is a tenant at will simply; therefore, from that time he is to pay for the occupation.’* See also Osgood vs. Dewey, 13 J. R. 240. In the present' case, .there never'was a valid contract of purchase. If the minds of the parties can be said ever to have met, their agreement was by parol, merely, and void under the statute of frauds, (R. S. 1838, p. 329, § 8,) and there had been no such: part performance as gave either of them a right to enforce'it in equity. (2 Story's Eq. Juris. § 761.) When, therefore, the defendant refused to accept the deed tendered, and the plaintiff' to execute any other, the parties stood in respect to the subsequent occupation, in the same relation to each other ás though a valid agreement had been made and after-wards abandoned, and thus the case is strictly analogous to Howard vs, Shaw.
As to whether the defendant is liable for the. first nine' months of Ms occupancy, we have entertained more doubt. He was admitted into" possession by the plaintiff’s agent, on. Ms maMng a proposition to purchase, and under the expectation that this proposition would be accepted by the plaintiff^ when made known to her, and a conveyance executed accordingly. The circumstances clearly repel any presumption of a promise by the defendant to pay for Ms occupation pending the negotiations for the purchase, m the event of the plaintiff’s refusal to accept Ms proposition, or having accepted it, her subsequent failure to perform on her part. (Winterbottom vs. Ingham, 7 Ad. & El. 611; Hough vs. Birge, 11 Verm. 190; Johnson vs. Beauchamp 9 Dana, 124; Kirtland vs. Pounsett, 2 Taunt. 145.) But it is manifestly just *574that the plaintiff should have compensation - for ‘siich occupation, m the event of a failure in the consummation of the' sale, occasioned by the defendant’s refusal to perform on his part.
And, we are of the opinion that, upon the principle before stated, a promise to pay for such occupation in such event, may fairly be implied. If this view is not fully sustained' by Hull vs. Vaughan, (6 Price, 157,) the comments of Lord Denman, in Winterbottom vs. Ingham, (7 Ad. & El. 611,) show that it is not in conflict with the English decisions. Iis sustained by the recent case of Smith vs. Wooding, (20 Ala. R. 324,) in which a vendee, who had entered into possession under a parol contract of purchase, and after remaining in possession for twelve months, refused to pay the purhase money and abandoned the premises, was held liable to the vendor, he not being in fault, for the use and occupation-of the land during the time he so held it. And it would seem also to be sanctioned by Gould vs. Thompson, (4 Metc. 224.) That was assumpsit for the use and occupation of premises which the defendant had entered under a parol agreement of purchase. He had paid the purchase money,, but the conyeyance to him had been delayed to give time for the discharge of an incumbrance. After four days’ occupancy, the house was destroyed by fire. The defendant refused a deed which was tendered to him the-day after the fire, rescinded the contract on the ground that performance by the plaintiff had become impossible, and recovered bade' the purchase money by a suit at law. Upon these facts, the Court were of the opinion that the defendant'was a tenant at will during the four days, and that a promise to pay for’ the usé and occupation during that time would be implied, and he was held liable accordingly. ,
If such promise could be implied in such a case, where the sole cause of the failure to consummate the sale was the plaintiff’s inability to convey, occasioned by inevitable ae*575cident, surely it may be where such failure is caused by the-defendant’s own default or refusal .to accept a conveyance, and perform on his part. It is believed that this view is not in conflict with Vanderheuvil vs. Storr’s, (3 Conn. 203,) and Smith vs. Stewart, (6 J. R. 46,) which' may be regarded as sustaining the doctrine that where there has been a contract-to purchase, valid at law, as in.the former case,, or enforceable in equity on the ground of part performance, as in the latter, under which the vendee has entered and occupied, the vendor cannot maintain assumpsit for such occupation while the contract, though unperformed, is yet unrescinded and in full-force; for, in the present case, as we have already said, there was no such contract.
-If this view is correct, the plaintiff is entitled to recover in-the present action for the first nine months of the defendant’s occupancy, if it appears that she accepted the defendant’s proposition to purchase, and offered to perform on her part, but not otherwise.
The case finds that, the proposition was accepted. Such acceptance created an,-agreement between the parties by which the plaintiff simply engaged to sell, and the defendant to-purchase the premises,'on the terms specified, nothing being said about-the title or the covenants which should be-contained in the deed by which they should be conveyed.
The plaintiff tendered a deed of the premises, with -covenants against her own acts merely, which she claimed was a' compliance with this contract. '
The defendant refused to receive this- deed and execute a' mortgage for the- purchase money, on the ground; first, that as he alleged, the premises were encumbered; and secondly, because the deed did not contain the usual covenants of seizin, against incumbrances, and of general warranty.-
No doubt the contract bound the plaintiff to make a -good title. She agreed to sell the premises; not to execute a deed-of whatever title she had to them. And in every contract-*576for the sale of land, unless the contrary intention is expressed, there is an implied undertaking on the part of the vendor* available at law as well as in equity, whilé the contract re~ mains executory, to make out a good title'clear of all defects and encumbrances, (Rawle Cov. for Tit. 430, et seq.; Souter vs. Drake, 5 Barn. & Ad. 992; Sharin vs. Fickling, 2 Rich. 361; Breithaupt vs. Thurmond, 3 Ib. 216; Creigh vs. Shatto, 9 Watts (& Serg. 82, in the matter of Humber, 1 Ed. Ch. R. 1; Hall vs. Betty, 4 Man. & Gran. 410; Purvis vs. Rayer, 9 Price, 488; Pomeroy vs. Drury, 14 Barb. S. C. R. 418; Hunter vs. O’Neil, 12 Ala. 37; Greenwood vs. Ligon, 10 S. & M. 615; Owings vs. Baldwin, 8 Gill. 337; Sugd. on Vend., 7 Am. Ed. 701, note.) It does- not appear in the present case whether the plaintiff* had a good title or not, but only that the defendant made certain objections to the title when a deed was tendered to him. The rule in England, where titles are not registered, unquestionably is,.that the vendor in such a contract, in order to show performance, or an offer to perform on his part, whether in an action at law for the purchase money, or in a suit in equity to compel specific performance, must prove affirmatively that he has a good title. (1 Sugd. on Vend. 429, § 19; Chit. Prac. 179; Souter vs. Drake, 5 Barn. & Ad. 992; Martin vs. Smith, 6 East. 555; Phillips vs. Fielding, 2 H. Bl. 123; Hallewell vs. Morrell, 1 Man. & Gran. 367; Laythoarp vs. Bryant, 1 Bing. N. C. 421.) But it would seem that in this country, where titles are recorded, and at all times open to the inspection of both parties,-a different rule prevails. It has been assumed in many cases of actions by the vendor to recover the purchase money, (among others see Little vs. Paddleford, 13 N. H. 167, and Feemster vs. May, 13 Sme. & Marsh. 275,) and was expressly decided in Breithaupt vs. Thurmond, 3 Rich. S. Car. R. 216; Brown vs. Bellows, 4 Pick. 179, 193; that the vendor might rely upon his tender of a-deed, without producing the evidence of his title. *577the burthen being on the purchaser to show such a defect in the title as would justify him. in refusing to accept the deed. See also Espy vs. Anderson, 2 Harr. (Penn.) R. 308.
We think this a safe, reasonable, and convenient rule, and in accordance with the general understanding of the profession in this country. And although there may be differences of opinion as to the ground on which it should be made to rest, we are inclined to adopt it, and to hold that in the absence of any finding to the contrary, we must assume that the plaintiff in this case, tendered a good title to the defendant.
The only remaining inquiry under this head is, whether the deed tendered by the plaintiff containing covenants against her own acts only, was such as the contract, required. We think it may be laid down as a general rule, that in every contract for the sale of lands, the vendor, unless he acts in a mere ministerial or fiduciary capacity, or there is something in the terms of the contract or attendant circumstances, which shows a contrary intention, impliedly engaged not merely as we have before said, to give a good title, but also to convey by a deed containing the usual covenants.
This has always been the well settled law ’ in England, (Dart on Vend. 259; Rawle on Cov. for Title, ch. 11; 2 Sugd. on Vend. 702,) and we think is in accordance with the general understanding of the parties to such contracts.
In England, the usual covenant of warranty on a conveyance of real estate is a covenant against the vendor’s own acts merely, except in cases where the vendor does not claim by purchase in the popular signification ’Of that term, in which case the covenant extends to the acts of the last person who thus, claimed by purchase, and accordingly such limited covenant is there held sufficient. But as has been well said by Mr. Rawle in his recent work on covenants for title, (p. 559,) owing to various causes; the practice of conveyancing differs widely on the opposite sides of the Atlan*578tic. It is obvious, moreover, that many of the usages of conveyancing which prevail where the state of society has for a- long time been permanent, the titles old, and to a great-er or less extent carefully examined at every purchase,, lose their application in a comparatively new country. The same covenants which might satisfy a purchaser in England or Massachusetts, might not satisfy a purchaser in Téxas or California, as precision of conveyancing increases with the steady rise of property, and as the titles become better known, a purchaser is less anxious for general covenants than where he buys in comparative ignorance of the title, and relies on such covenants for protection. Hence, the. greatest difference will be found to exist between the law. and practice on this point not only on the different sides of the Atlantic, but between different States. In Pennsylvania, the Supreme Court have laid it down as a general rule that a purchaser -has no right to expect covenants of greater scope than against -the acts of .the vendor and his'heirs, and that an agreement to convey by warranty deed, means in popular phrase, a deed with special warranty. (Withers vs. Baird, 7 Watts, 229; Espy vs. Anderson, 2 Har. 312.) Mr. Rawle expresses the opinion that in the larger towns of that State, such is the only express covenant for title usually inserted in conveyances. In Kentucky, it was held from an early day, to be. both the settled rule and practice in that State, that unléss where there was a special contract to the contrary, a covenant of general warranty must, be given. (Steel vs. Mitchell, Kent, Dec. 47,) and such seems still to be the rule. (Fleming vs. Harrison, 2 Bill. 171; Vanada's Heirs vs. Hopkins, 1 J.J. Marsh. 293; Hedges vs. Kerr, 4 B. Mon. 528.) So in Indiana; a bond conditioned “ for making a lawful title,” was held to require a general warranty. (Clark vs. Redman, 1 Blackf. 379.) So where in Ohio it was said, (Tremaine, vs. Lining; Weight, 644,) that “a contract for a good and sufficient deed, means a deed with a covenant of *579warranty,” it is presumed that ar general warranty is meant. So in Virginia, it was held in Rucker vs. Lowther, (6 Leigh. 259,) that where L., attorney for C., covenanted to sell and convey land to B. according to a power of attorney given him by C.; this was a covenant for a conveyance by C. with general warranty, unless the power of attorney referred to in the co venant, confined the attorney to a special warranty, and it was shown to the purchaser at the time of the contract, or its contents fairly and fully stated to him. But see Pennington vs. Hanby, 4 Munf. 140; Fuller's. Hubbard, 6 Cow. 13. No doubt it is the general usage in this State, and probably in most of the western States, to convey land by deeds containing the covenant of general warranty, upon the principle that an agreement to convey, where there is nothing to show a contrary intention, gives a right to the usual covenants for title. We think the plaintiff was bound in the pres" ent case to convey by a deed containing a general warranty; and that the conveyance tendered, which contained a covenant against her own acts merely, was not a compliance with her contract. As the case thus shows fch t the failure in the consummation of the sale, arose from the default of the plaintiff, upon the principle before stated, she is not'entitled to recover for the'first nine months of the defendant’s occupancy.
It must be certified to the Circuit Court as the opinion of this Court, that the plaintiff is entitled to recover at the rate of $75 per year, for the last 15 months of the defendants’ occupancy of the premises in question, but that she is not entitled to recover for the preceding nine months of said occupancy.