Page:Federal Reporter, 1st Series, Volume 8.djvu/710

696 FEDERAL REPORTER. �damages ; and that the conventional relation of landlord and tenant did not exist between the parties, and therefore there can be no recovery for use and occupation. These objections to the recovery are not well taken. It is elementary that whenever, in actions ex contractu, one or more of several parties having a joint legal interest dies, the action can only be maintained by the survivor. The orig- inal plaintiffs not only could but probably were required to sue jointly. 1 Chit. PL 12; Decker v. Livingston, 15 Johns. 479; Hill v. Qibbs, 5 Hill, 56; Sherman y. Ballou, 8 Cow. 304. �When there is a joint demise by tenants in common and an entire rent is reserved, the action is properly bronght by the lessors jointly; and when there bas been no express contract for the letting of the premises, tenants in common may join in an action for use and occu- pation. Porter y. Bleiler, 11 B&th. 14:9. �Undoubtedly, the actidn for use and occupation only lies where the relation of landlord and tenant exists ; but, as is stated in Taylor's Landlord and Tenant, § 655, "it is not necessary for the plaintiff to prove an express contract with the tenant when he took possession, or any particular reservation of rent, nor that the tenant has once paid rent; for an understanding to that effect will be implied in all cases where a permissive holding is established." In C arpenter y. V. S. 17 Wall. 489, Mr. Justice Strong, delivering the opinion of the court, eays, (p. 493 :) �"When the defendant has entered and occupied by permission of the plain- tiff without any express contract, the law iraplies a promise on his part to make compensation or pay a reasonable rent for his occupation." �The instructions to the jury were correct, and the motion for a new trial is denied. ���Smith & Downs v. Eeynolds. �(Circuit Court, D. Colorado. September, 1880.) �1. TrriiK Bonds — Nudtjm PAcruM— Bill fob Bpkcipic Peki-ormakce. �Where a bill for specifie performance was brought, based upou a title bond whereby the obligors bound themselves to convey certain property to the obligees upon certain payments being made, Hield, that such a bond could not be enforced for want of consideration. �The complaint was a bill for specifie performance, based upon a title bond executed by three of the defendants to the complainants, in pursuapce of which they bound themselves to convey three-fifths ��� �