delivered the opinion of the Court. The claim .... of the plaintiffs is grounded on the assumed fact, that the defendant was by the agreement of submission a tenant of the plaintiffs from the 21st of May (when the award was delivered) to the 1st of August, 1824, (by which time he agreed to remove his buildings,) and that he held over by sufferance, and so is not to be permitted to question the title of his landlord. Two answers to the plaintiffs’ claim are suggested by the defendant: — in the first place, that there was in fact no holding at all by him as a tenant to the plaintiffs, in virtue of that agreement; and secondly, if there were, that it ceased, according to its own limitation, before the commencement of the occupation for which this action was brought, and that the defendant expressly denied the plaintiffs’ title during the whole time. So that there was no holding over at the plaintiffs’ sufferance.

*7Whether the defendant did in fact become tenant from the time when the arbitrators delivered their award to the 1st of August, 1824, when he was to remove his buildings, depends upon the true construction of the agreement. It is not an agreement to become tenant at all events, but upon conditions arising by necessary implication, namely, provided the arbitrators should make a legal award, and provided also that the defendant accepted it and conformed to its provisions. If no legal award should be made, or if the plaintiffs should elect to pay damages for the non-performance, in either event, the defendant was not to become tenant at all, but was to be re stored to his estate.

On the 21st of May, 1824, when the award was delivered, and the plaintiffs tendered the sum of $ 8909-58, which was to be paid by the city to the defendant, he refused to abide by it. He considered it so erroneous as to render it proper for him to pay more money to be placed in statu quo, than the plaintiffs were awarded to pay for the whole property; and, in ten days after he obtained a duplicate of the award, he actually tendered the penalty of $10,000, and claimed to be restored to his estate. Sufficient notice of the defendant’s refusal to abide by the award, was given to the plaintiffs. Now the plaintiffs, perhaps, may have a good cause of action for the defendant’s not performing the award, for his not becoming tenant, and paying $ 50 rent from May to the 1st of August; but how his refusal is to be construed into an acquiescence, how his utter denial of the plaintiffs’ right to become his landlords under that agreement, should operate as an acknowledgment of his being in fact their tenant, is very difficult to be perceived. The most that can be made of it is, that the defendant entered into á contract to become tenant to the plaintiffs at a future day, for a limited time, and that he would not become tenant as he had agreed to do. o Under those circumstances, it might be said that he had broken his agreement, but not that he became a tenant under it. The contract was ex-ecutory, but never executed. The relation of landlord and tenant, therefore, was not created in fact; so there could not be any holding over at sufferance.

But if that relation existed, it expired on the 1st of August, *81824, before the commencement of the occupation for winch this action was brought; and the defendant renounced and denied the plaintiffs’ title during the whole time of the occupation now in controversy. The agreement and award extended only to August 1, 1824. The defendant was then to remove his buildings, and to pay $ 50 for the rent from the time of the delivery of the award and deed, until the 1st of August. It cannot be maintained, that the arbitrators intended that their award should extend or relate to rent after that day. In the first place, the parties had given them no authority to make it so extend ; in the second, they explain their words “ for the occupation of the premises until the buildings shall be removed,” by referring “to the first day of August then next” as the time for which the defendant was to pay the $ 50. There never was any submission or agreement touching the occupation after that day, and that is the subject-matter of this action. Three days before it was commenced, the defendant formally, in writing, “renounced the plaintiffs’ title, divested himself of the possession obtained under the plaintiffs, and commenced a fresh holding ” under his own alleged better title. Bulls v. Westwood, 2 Campb. 11. There was nothing in this conduct which can warrant the inference of holding over at sufferance, even if there had been a prior holding as tenant for a certain time.

Suppose that there had been a written lease by the plaintiffs to the defendant from May 21 to August 1, and just before its expiration the defendant, for good cause, or without any legal cause, had renounced that title, and given notice of his intent to commence upon another title after the lease should expire. Such renunciation would have rebutted any right of the plaintiffs to claim to hold the defendant accountable as a tenant at sufferance. It was not the mere naked, unexplained holding over of a tenant, of which we read in the books. 1 Roll. Abr. 659 ; Co. Lit. 57. All that the law reqi res is, that, during the time when the tenant actually holds by the permission of his landlord, the landlord’s title shall not be disputed. But when he ceases to hold in that relation, he may commence upon an adverse title, after the expiration of the lease; Now the inference to be derived from the agreement *9to become tenant from May to August, cannot be more unfavorable for the defendant’s commencing upon another title after the 1st of August, than the lease for that time would be.

It was said, however, that the plaintiffs were seised in virtue of the deed. That, however, would depend upon its having been delivered with the assent of the defendant, under all the circumstances of the case; and the decision of that question would open the whole ground of controversy. But suppose it were so, and that, upon a trial of the merits, the defendant would fail in the claim which he has set up, the result , would be, not that he has been a tenant of the plaintiffs during the time he has occupied after August 1, 1824, but a disseisor of the plaintiffs. And an ample remedy is provided; he would be accountable in trespass for the mesne profits, after the plaintiffs should have proved their title in a writ of entry or other proper action. During all that time the defendant was in possession, claiming the fee, taking the rents as his own, and denying the title of the plaintiffs. If the city had conveyed by deed to a stranger, is it not clear, that, in consequence of that disseisin, nothing would have passed ? £‘ If, (says Lord Mansfield, in Fishar v. Prosser, Cowp. 218,) upon a demand made by the co-tenant of his moiety, the other denies to pay, and denies his title, saying he claims the whole, and will not pay, and continues in possession, such possession is adverse and is ouster enough.”

It is said that a party injured may waive the tort and maintain assumpsit. But the defendant has a right to say to the plaintiffs, “ there has been no tort; you have nothing to waive ; the land is mine, not yoúrs.” And whether it belongs to one or the other, we could not try in an action of assumpsit for use and occupation. So we said expressly in Codman v. Jenkins, 14 Mass. R. 96.* ££ Indebitatus assumpsit for rent *10will m. lie in favor of a stranger, for the purpose of trying his title; or by one of two litigating parties claiming the land: this action not depending .upon the validity of the plaintiff’s title, but on a contract express or implied.” There has been nothing but litigation between these parties, in one form or another, since the publication of the award. The very subject matter of this suit was litigated in the action of Binney v. Chapman, 5 Pick. 124, in which the defendants were supported and indemnified by the city in their unsuccessful defence. The land has been claimed by the city and claimed by Binney', from that time to the present. But the title is not to be tried in this action of assumpsit for use and occupation. It would be directly contrary to the established principle for the tenant to controvert the title of his landlord. The plaintiffs’ ground is, that the defendant was their tenant, and holds over.by their sufferance. If that were so, it would be clear that the defendant could not be permitted to deny the “title. But the defendant’s mouth is not to be shut, because he once was tenant, if he renounced before the commencement of the alleged time of holding over at sufferance. It has been contended 'for the plaintiffs, that they became seised in virtue of the deed which the defendant delivered to the arbitrators, and they to the plaintiffs, and that that should be held conclusive in this action, as the defendant has not shown any thing to defeat it. But if the defendant is to be treated as the plaintiffs’ tenant, how can he be permitted to show any thing adverse to their apparent title ? Suppose that a stranger had a better title than that which the defendant had when he gave the deed, and that after the expiration of the lease and before holding at sufferance, the defendant had acquired the better title by purchase or descent, shall he never have an opportunity to try it ? Shall he be for ever precluded, because he once held as tenant, though he renounced that relation before the acquisition of the better title ? If it be said that the defendant may show a better title in this action of assumpsit for rent, then what becomes of the rule that he cannot controvert the title ? That rule is too firmly settled to be questioned or shaken. It comes, then, to this point, that where there is no contract, express or implied, *11no action for use and occupation can be maintained. That being the case at bar, the plaintiffs should be nonsuited.1