It seems well settled that a plaintiff, after a recovery in ejectment, can not, in assumpsit, for use and occupation, recover rents and profits, accruing after the date of the demise in the declaration. 1 Term, 378; 3 Ohio, 264; Woodfall’s Ter. L. 432. Bixbe entered claiming title, and not as tenant. This action, by statute 11 George II., ch. 19, sec. 14, lies upon an .implied agreement to pay rent. To create the relation of landlord and tenant, an agree*197ment, either expressed or implied, must exist. Presumptive evidence will do, such as that the defendant holds over after the expiration of his lease by parol. Osgood v. Dewey, 13 Johns. 240 3 Stark. Ev. 1516; 13 Johns. 297.

But the facts must show, expressly or impliedly, that the defendant occupies as tenant of the plaintiff. In the case of Smith v. Stewart, 6 Johns. 46, the defendant took possession of lands as a purchaser from the plaintiff, and- by his consent, -but afterward refused to pay, and abandoned the contract. The court say, as the defendant did not enter under the relation of tenant, but under a contract for a deed, the plaintiff could not recover in this form of action. The same principle was decided in the case of Bancroft v. Wardell, 13 Johns. 489 ; 1 Esp. N. P. 20; Woodfall’s Terra Law, 432; 3 Serg. & Rawl. 500; 17 Mass. 299; 2 Green. 337; 1 Munf. 407; 3 Dall. 503. These authorities establish the principle, that when a person occupies the land of another, not as tenant, but adversely, or, where the circumstances under which he enters, show that he does not recognize the owner as his landlord, this action will not lie. The remedy is trespass for mesne profits, after a recovery in ejectment.

It has been determined that a defendant can not in this action dispute the title of the plaintiff, and that nil habuit in tenementis, is a bad plea. Lewis v. Willis, 1 Wil. 314; Cook et al. v. Loxley, 5 Term, 4; 2 Wils. 208. In the principal case, the facts admit that Bixbe entered claiming title. This surely rebuts the implication of the relation of landlord and tenant.

*There is no express contract to pay rent; consequently the plaintiffs can not recover on the facts before the court.

Judgment of nonsuit.