By the Court,
Ripley, Ch. J.If we were to assume, that each count in this complaim sets out, as the appellant insists that it does, a cause of action for damages for wrongfully withholding distinct parcels of real property, and also, in accordance with what from the demand for judgment would appear to have been the theory of the pleader who drew the complaint, that the second and third counts state, in addition thereto, a cause of action to recover the possession of the real property therein described, it would follow ' that the demurrer was rightly allowed for the cause assigned *169by tbe district court, viz : that several causes of action are improperly joined in the complaint.
A joinder of a cause of action to recover possession of certain real property and damages for withholding it, with a cause of action for damages for withholding certain other property, is not within Gen. Stcit. eh. 66, see. 98, sub. 5, relied on by appellant, and, obviously, is not within sub. 1 of said section. Such several causes of action would not all arise out of a transaction connected with one subject of action. And not only does each count in this complaint describe different parcels of real estate, but plaintiff’s title thereto is stated to have accrued at different dates.
But we do not think the second and third counts state a cause of action in ejectment. They both show that the defendants were lawfully in possession when plaintiff’s title accrued. The plaintiff must therefore allege, or state facts showing, that they since unlawfully withhold the possession from the plaintiff. This she does not do.
The second count alleges that plaintiff became the owner of the land therein described on the 3rd May, 1869. It does not necessarily follow that defendant’s possession thereupon became unlawful. The allegation, for instance, is entirely consistent with defendants’ holding under an unexpired lease from plaintiff’s grantor. So too-is the statement that defendants’ possession was without plaintiff’s consent and against her will. That they denied and disregarded plaintiff’s rights in and to the premises, states no fact whereby defendants’ possession became unlawful, and does not amount to an allegation that it was. What rights she had to possession which defendants denied and disregarded are not stated. In ejectment plaintiff must recover on her right of possession at the commencement of the action. 8 Minn. 254, 257.
*170The third count relates to an additional undivided one-fourth of a tract, another undivided fourth of which is described in the second count. The additional allegation, [wherein this count differs from the preceding one,] that as to this one-fourth plaintiff is entitled to possession, does not help the case. We have just seen that defendants’ possession of the one-fourth described in the second count is lawful as against plaintiff. In the very nature of things defendants could not be in possession of one undivided moiety, without being in possession of the other also. Therefore, if their possession of the one was lawful, their possession of the other must be. Rising v. Stannard, 17 Mass. 282. Their possession would be plaintiff’s possession, in the absence of facts which would prove an ouster, and none such are alleged.
The complaint, therefore, is not demurrable for the reason assigned by the court below.
The plaintiff says that all three counts are for damages for wrongfully withholding from her the possession of her real estate. Neither however in our opinion states a good cause of action therefor, nor any cause of action ivliatever against defendants. The demurrer is therefore to be sustained on the second ground therein specified.
We have seen that the second and third counts allege no wrongful withholding of possession by defendants, nor any facts to show that their originally lawful possession had become unlawful. Plaintiff’s supposition is therefore erroneous in respect to these counts. She is equally mistaken as to the first count, which like the others admits defendants to have been lawfully in possession of the whole of the land therein described at the time plaintiff’s title accrued to the undivided one-half thereof; and while it neither alleges nor states facts to show that this afterwards *171became unlawful as to such one-balf, it leaves defendants’ continued possession of the other moiety not only lawful, but with plaintiff’s consent. In that case the possession of the other must also, as already stated, have necessarily been lawful.
The complaint, evidently, means to charge, and, we think, does charge an actual use and occupation and taking of the profits by defendants themselves, not the receipt of rent from tenants occupying under them. But it cannot be sustained as an action for use and occupation. Assumpsit for use and occupation will not lie unless there be a contract express or implied between the parties. Chitty on Contracts p. 331.
The law, it is true, will imply a contract from the fact that defendants have been in occupation of plaintiff’s land, if such holding has been with plaintiff’s assent (Ib. p. 330, n. 1); but this complaint expressly negatives such assent, and thereby rebuts such implication. Boston vs Binney 11 Pick. 1; Mayo vs. Fletcher 14 Pick. 525. If it be said, that plaintiff can waive the tort and bring assumpsit, the reply is, there is no tort alleged; defendants’ possession is not shown to have been unlawful. Boston vs. Binney, 11 Pick. 9.
If it should be urged that defendants’ possession of the moiety described in the first count to which plaintiff lays no claim, will be presumed to be that of owner and tenant in common with plaintiff, it must be answered, that if such co-tenancy had been directly alleged, the action for use and occupation would still not lie, no claim for possession of her moiety being alleged to have been made by plaintiff, nor any knowledge by defendants of her title. 1 Wash. Real Prop.ch. 13, sec. 15; 12 Mass. 149; 4 Met. 413. Nor would such count, in the case supposed, be good as a cause of action *172by one co-tenant against others who had received more than their share of the rent, even supposing that it could rationally be construed to mean that defendants’ lessee instead of themselves had been in the actual occupation. Tho rents and profits are alleged to have been worth f200 a year, but that defendants received that or any other sum of money as rent is not alleged.
Order affirmed.