Sampson

delivered the opinion of the court. Heydenfeldt, Justice, concurred.

The action ir. the court below, was brought to recover $1400, for the alleged ise and occupation of certain premises in Marysville, by the defendant, “at his request, and by the permission of the plaintiff," iron March 1, 1851, to May, 1852. The defendant in his answer denies all indebtedness for the alleged use and occupation by him of the premises, and denied that he used and occupied them by tie permission of the plaintiff.

The legality of tie plaintiff’s title is not in issue. The plaintiff could not prevál upon it in this action, if it were valid; neither could the dtfendant dispose of it, if it were not; and whether it belongs to one or the other could not be tried in an action to recover red; for use and occupation. “Indebitatus assumpsit for rent, wih not lie in favor of a stranger for the purpose of trying his title; or by one of two litigant parties claiming the land: this actim depending not upon the validity of the plaintiff’s title, but on acontract, express or implied.” So it was *202 expressly said in Boston v. Brinley, 11 Pickering, 1, and Codman v. 14 Mass. R. 96 , and the rule is sustained by…