of the “use and occupancy” of the premises—that is, upon what would be a fair rental to be paid to the owner of the premises, when the question of ownership was determined.
The judgment appealed from is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Appellant will recover costs on this appeal.
Birdzell, CHRISTIANSON, BRONSON, and GRACE, JJ., concur.
Robinson, C. J. (concurring in part). We all agree that the owner of land may lease it, and that it was competent for the plaintiff to lease his quarter section of land to the Missouri Company at an agreed price; but the bond in question is not a lease. There was no lease of the land for a month, a year, or for any time. The Missouri Company did not hold possession as a lessee, for a lessee is never subject to be dispossessed in a moment in the way the Missouri Company was dispossessed. When the bond was made, the parties were in court disputing the right to the title and possession of the land. The Missouri Company had a right to hold possession on giving a bond to pay the value of the use and occupation. Comp. Laws, § 7828. The bond in question may well be sustained, if considered as an agreement to pay the value of the use and occupation, not exceeding $500 a year. But if the bond is construed as an agreement to pay $500 a year as damages for the withholding of the land not leased to it, then it is an agreement to pay a compensation for the breach of an obligation, and is to that extent void. Comp. Laws, § 5925.
The case should be remanded for a new trial, with directions to give judgment for the value of the use and occupation of the land, regardless of the amount named in the bond.
