The defendant, being a married woman, could make no contract for the use and occupation of real estate, unless as ,ier sole and separate property, or under her statute power to carry on business on her own separate account. She coulu *565derive no title to it by a contract with her husband. She made no contract with the plaintiffs, but occupied, and always claimed to occupy, under her husband, denying the plaintiffs’ title.
These considerations are decisive of the case. The plaintiffs seek to charge her for rent as a tenant at sufferance, under the Gen. Sts. c. 90, § 25. But she was never their tenant in any form. An “understanding” between her husband and the Baptist Society, that she would occupy for her separate business a part of the premises which the society leased to him, could not make her a tenant, or give to her husband’s attempt to underlet to her any validity which the law would not otherwise allow. Her possession, derived wholly from him, was his possession, notwithstanding the formality of paying him rent. He could not give her any title or estate by any grant or form of conveyance or contract, because the law does not empower her to contract with her husband, and as to him she was not in this respect empowered to act as a feme sole. Her possession being always that of her husband, when his tenancy was terminated her continued occupation under him made him the tenant at sufferance and liable for rent. On the recovery by the plaintiff Knowles in the suit of Knowles v. Hull, reported 97 Mass. 206, the present defendant might have been removed from the shop by the process which issued under that judgment. Lord v. Parker, 3 Allen, 127. Edwards v. Stevens, Ib. 315. Ingham v. White, 4 Allen, 412. Gay v. Kingsley, 11 Allen, 345. Baxter v. Knowles, 12 Allen, 114. Gen. Sts. c. 108, §§ 5, 10. 1 Washb. Real Prop. 392.
An action in the nature of assumpsit for use and occupation depends upon a contract, express or implied. Cobb v. Arnold, 8 Met. 398. The defendant made none with either of the plaintiffs ; never held as their tenant; denied their title; and occupied only in right of her husband. Judgment for the defendant