delivered the opinion of the Court:
This is an action of debt for the use and occupation of a farm. The bill of exceptions states -that it was proved or admitted on the trial, that the farm was public land on which improvements had been made and sold to the plaintiff’s intestate, who leased the same to one Bartholomew, who leased the same to one McKernan; and that McKernan sold the improvements to the defendant, who entered and occupied the farm; for which occupation this action is brought. On this state of facts, the judge instructed the jury, that the plaintiff or his intestate must have been the owner of the land, or that there must have been an express contract on the part of the defendant to pay rent, in order to entitle the plaintiff to recover.” To which instruction the plaintiff excepted. The jury returned a verdict for the defendant, and judgment was entered thereon against the plaintiff for costs. To reverse this judgment, the cause has been brought to this- Court by writ of error.
Was the instruction wrong ? If it is intended to support this action under the “ Act concerning Landlords and Tenants,” the instruction being in the language of the statute, was right. If the word “ owner,” as used in the statute, is ambiguous, it was the duty of the plaintiff to have asked for such explanation of the term as he deemed necessary; not having asked for any explanation, it is too late to complain in this Court. Do the facts render the instruction wrong at common law ? In order to maintain an action at common -law for use and occupation, it is necessary to prove either that the defendant entered the premises by permission of the plaintiff, or that the actual relation of landlord and tenant existed. In this cause we must understand from the case, that the improvements were sold to the defendant, and that he purchased in the expectation of becoming the absolute owner of the improvements, and not the tenant of any person. Will the law presume that improvements purchased in this manner, created the relation of landlord and tenant, and imply that the entrance of the defendant was by permission of the plaintiff? We think not; for such presumption would entirely contradict the facts of the case. If the proof had established the fact that the defendant knew when he purchased the improvements in question, that the seller was a tenant, there can be no doubt that under such a state of the case, the law would have raised every *113necessary presumption to prevent the defendant from availing himself of his own want of good faith, to defeat the action. The Court, therefore, is clearly of opinion, that the facts of this case would not have justified the Court in charging the jury that the plaintiff was entitled to recover without proving either an express contract to pay rent, or an admission on the part of the defendant, that he held as tenant of the plaintiff. In arriving at this result, the Court does not intend to deny the doctrine, that “ a tenant is not permitted to dispute his landlord’s title, whether such tenant be the original lessee or his assigneefor, in our opinion, the facts do not warrant the idea that any such relation existed : nor do we intend to controvert the position that “a purchaser cannot obtain a better title than his vendor had.” This doctrine, however, could not in this case raise either an express or implied promise on the part of the defendant, to pay rent.
Although the Court does not perceive any error in the charge of the judge, yet as the judgment is given for costs, it must be reversed. The suit was brought by an administrator, in the right of his intestate. In such a case the statute “ Concerning Costs,” does not give costs against the plaintiff.(1)
For this error, the judgment must be reversed so far as giving costs is concerned, and affirmed in other respects. The costs of this Court are divided between the parties.
Judgment reversed, and judgment rendered in this Court.