DeLaperriere v. Bowles

The plea of set-off is very indefinite and uncertain. Construing it to be an effort to set off a claim for rent collected by the life-tenant’s vendee, — the rent accruing for the year after the life-estate had terminated, the plea was open to the demurrer urged against it. There is no allegation that the tenants of the plaintiff ever attorned to the administrator of Bowles, or that the plaintiff’s possession was held under him. On the contrary, the plaintiff owned the life-estate of the doweress; this estate was ended by her death, and the defendant’s contention was that the rent was collected and taken possession of by the plaintiff without legal authority, and that “he owes to and unjustly detains the same from defendant as administrator.” “When title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied; but if the entry was not under the ‘plaintiff, or if possession is adverse to him, no such implication- arises.” Civil Code, § 3116. The plaintiff’s entry upon the land was under his purchase of the life-estate of the doweress; after the termination of this estate the administrator of the deceased owner was entitled .to demand possession from the life-tenant’s vendee. The posses*20sion of the latter was not the possession of the administrator, without attornment. The administrator might maintain an action of trespass against' the plaintiff, for the loss occasioned the estate of his intestate by being deprived of the use and occupation of the land; but he can not set off this claim against the plaintiff’s suit, which is founded on contract. Civil Code, § 4944. That the plaintiff, after the termination of the life-estate, tortiously remained in possession, either in person or through his tenants, could not give rise to any implied promise to pay or account for rent. Allen v. R. Co. 107 Ga. 838, 849. It is clear, therefore, that the defendant did not allege facts showing that he was entitled to recover in assumpsit for the rent collected by the plaintiff from his-tenants after the termination of the life-estate.

As the court committed error in refusing to strike the plea on motion, it follows that another trial must be ordered.

Judgment reversed.