delivered the opinion of the Court:
This was an action of assumpsit, and the declaration contained a count for use and occupation of lands, and the usual money counts. A trial was had on the general issue, and resulted in a judgment in favor of plaintiff below for the sum of $1,262, and costs of suit. A motion for a new trial was entered and was overruled by the court. Exceptions were taken, and defendant below brings the cause to this court by appeal, and assigns for error the overruling of the motion for a new trial and the rendition of the judgment in favor of plaintiff below.
It appears from the evidence that the appellee, in the year 1853, filed a bill in equity against appellant, as administrator of John Duncan, and the heirs of Duncan and other persons, for the purpose of setting aside deeds of conveyance for the lands, for the use of which it is claimed the rents accrued, made by one James Duncan to one Letcher, and by him conveyed to John Duncan, to defraud the creditors of James Duncan. The bill charges that John Duncan occupied the premises after he received a conveyance from Letcher until the time of his death. That letters of administration were granted on his estate to appellant, who claimed to have some interest in the lands. That execution was issued against James Duncan, in his life-time, on a judgment rendered against James Duncan and one Ayres, and in favor of Norton, which was transferred to appellee by assignment, and that a part of the judgment remained unsatisfied. That after his death execution was regularly issued and the lands sold by the sheriff to appellee, who afterward received a deed from the sheriff. Appellant filed an answer to the bill, a hearing was had, and a decree was rendered setting aside the deeds from James Duncan to Letcher, and from the latter to John Duncan, as fraudulent and void as to appellee.
It also appears that appellant leased the farm to different tenants for nine or ten years before this suit was brought, that the premises rented a portion of that time for $250 a year. At some times appellant claimed the land, and at others he claimed that he was the agent of Duncan’s heirs, or of Shenkle. That he sold some timber from the farm, and gave permission to different persons to use fallen timber from the farm. There is no evidence in the record, that appellant ever leased the premises of appellee, or in any manner recognized his title to the land. On the contrary, appellant claimed in his own right, or the right of others, for whom he claimed to act.
It has been repeatedly held by this court that an action for use and occupation cannot be maintained, unless the relation of landlord and tenant is shown to have existed during the occupancy. That relation may, however, be shown by express contract, or it may be implied from circumstances. Dudding v. Hill, 15 Ill. 61; Ballentine v. McDowell, 2 Scam. 28; McNair v. Schwartz, 16 Ill. 24; Greenup v. Vernon, 16 id. 26. In the last two of these cases it was held, that when a person enters into possession under a contract to purchase, and refuses to perform the contract, the owner cannot recover in assumpsit for use and occupation. In the last named case it was also held that where a vendor remains in possession, after sale and conveyance, a tenancy cannot be implied, so as to authorize the vendee to recover for use and occupation. It then follows that as the relation of landlord and tenant was not shown, appellee could not recover under this count, at the common law.
There having been shown no tenancy, and the relation of landlord and tenant not existing, if a right of recovery exists it must be alone by force of a statutory provision, as rents could not be recovered at the common law where the occupancy was tortious. The right being for a recovery of damages merely, an action of tort was the only remedy, and neither debt nor assumpsit would lie to recover such damages.
The general assembly, for the purpose of obviating the hardships frequently suffered by the common law rule, and the act of 1845, on the 20th of February, 1861, Session Laws, 176, adopted an act to extend the remedy given by the former act to all cases where a purchase had been made and possession given, and the purchaser failed to complete the purchase, and in cases where the land was sold under execution or decree of court, and the defendant failed to surrender possession after the time for redemption had expired. It declares that in such cases the action of debt or assumpsit, for use and occupation, may be sustained.
In the case of Jackson v. Warner, 32 Ill. 331, this court held, that this was a remedial statute, and as such must be construed liberally, that the remedy may be advanced and not narrowed or crippled in its provisions. We there said, that, to understand the scope of a statute purporting in its title to amend another, we must know what the provisions of the act amended were; for what cases it provided; what defects had been observed in its operation; and we must understand how they were designed to be remedied by the amendatory act. In other words, what was the mischief, and what was the remedy proposed? By the act of 1845, the action of debt or assumpsit for use and occupation could only be maintained where the relation of landlord and tenant was expressly shown, or facts were proved from which that relation could be inferred. In the administration of justice, it was found that in many cases great hardships occurred where the entry was not tortious but lawful, and the person thus acquiring possession, when it was" unjust and inequitable for him to retain the possession without paying rent to the owner, was held not liable, and it was obviously to remedy this evil that this amendatory act was adopted.
Under the former act, a person entering under a contract of purchase, and failing to complete it, although he may have entered according to the agreement of the parties, was not in as a tenant, nor could that relation be implied. He was in as a: purchaser. So of a debtor, where land was sold under an execution or decree of a court, retaining possession after the time for redemption had expired. He was not, in any sense of the term, a tenant, nor had he entered as a wrong-doer, but it was nevertheless unjust and inequitable that he should use and occupy the premises after they had ceased to be his lands, without making compensation to the owner. These cases are enumerated in the amendatory act, and no question can of course arise as to them; but are other cases, falling within the mischief of the old law, and fully within the reason of the amendatory act, to be governed by its spirit, as though enumerated by it ? We think they should.
When the Circuit Court acquired jurisdiction of the suit in equity, the complainant should have prayed an account for rents and profits, but failing to do so, he was estopped from subsequently filing a bill for that purpose. Equity had no original jurisdiction to state an account of rents or profits in this case,' but, having acquired jurisdiction to set aside the conveyance for fraud, had the bill been properly framed, the account might have been stated and complete justice been done. It then follows that, when this statute was enacted, plaintiff below had no right of recovery either at law or in equity. And, to hold, that under this statute he might recover, would be to confer upon him a right which he did not previously possess. Such an act is unauthorized by the Constitution; and had this statute so provided, in terms, it would have been inoperative; but it does not, nor will we give it such a construction.
The legislature did not design to confer rights, but only to enable parties, in the mode provided, to recover existing rights. Had plaintiff below not been precluded from recovering in equity, by omitting to pray an account in his bill, it might have been otherwise. The statement of such an account not being equitable, had the decree in that case been rendered after the passage of that law, the party would have had his choice of remedies, by an action at law to recover rent after the conveyance was set aside, or to have had the account taken under the bill. But the decree having been rendered before the passage of the law, and the party then having no action at law or right of recovery, the statute could confer no such right. To hold that a recovery could be had in this case, under the statute, would be to hold, not that a new remedy was given for the recovery of an existing right, but to hold that a new right was conferred, and also a remedy for its recovery. This was not designed, nor could it have been done.
The judgment of the court below must be reversed and the cause remanded.
Judgment reversed.