Argument for Appellee. ton Railroad v. Cowdrey, 11 Wall. 459, 482; United States v. New Orleans Railroad, 12 Wall. 362, 365; Palmer v. Forbes, 23 Illinois, 249; Lehigh Coal &c. Co. v. Central Railroad, 35 N. J. Eq. (8 Stewart) 379; Salem Bank v. Anderson, 75 Virginia, 250; Weetjen v. St. Paul & Pacific Railroad, 4 Hun, 529. Mr. Lawrence Maxwell, Jr., (with whom were Mr. Garland Pollard and Mr. William M. Ramsey on the brief,) for appellee. The suit below being for rent for use and occupation, I contented myself in the former argument with an attempt to show that such an action would not lie. This I did by pointing out that the premises were held under an express contract to furnish ferriage, as one of the considerations for their use, and that, therefore, no implied contract to pay money rent could be inferred. The correctness of this position is now conceded by counsel for the appellant. They admit that an action for use and occupation does not lie, but that their remedy, if any, is for breach of the contract of 1858. They rest their case on this appeal, upon an effort to now convert it from an action for use and occupation into a suit for damages for breach of the contract of 1858. This, we submit, cannot be done. I. Upon the pleadings and proofs the case is simply one for rent for use and occupation. The sole defence set up by the answer was that the premises since 1862 had been, and then were, held under the contract of 1958, and that thereunder no money rent was due for use and occupation. The amended petition, filed February 27, 1880, repeats the allegation of the original petition, that the railway company in 1862, and the receiver upon his appointment in 1876, severally "with the tacit consent of the petitioner, and without any special agreement for rent therefor, entered upon and took possession of said premises"; it repeats the prayer of the original petition as already quoted, to recover the amounts alleged to be due for use and occupation. There is no allegation that the rail Argument for Appellee. way company or the receiver ever assumed or became otherwise bound by the contract of 1858. The case was also treated through the entire hearing as one simply for use and occupation. The plaintiff offered no evidence except to establish the rental value of the premises, and to show that they had not been held by the defendant under the contract of 1858. There was some proof in a general way as to the defendant's failure to furnish ferriage, but that was only for the purpose of establishing the plaintiff's contention that the contract of 1858 had not been recognized by the parties as being in force. There was no attempt to offer evidence as to the amount of ferriage supplied, or as to loss of profits, such as would have been absolutely necessary if the suit had been dealt with as one for breach of the contract of 1858. The master suggested that leave might be given the plaintiff to amend the petition so as to convert the suit from one for use and occupation into one for damages for breach of the the covenant of ferriage, but the suggestion was declined, and the plaintiff went to final hearing on the case made by its intervening petition for use and occupation, and for nothing else. The master, assuming that leave to amend might be asked and obtained, suggested a second reference to supply the evidence necessary to support the new case, but the plaintiff declined that suggestion also, adhered to its case for use and occupation, as made by the pleadings, and excepted to the report on the sole ground that the master had decided against its right to maintain that action. There can be no doubt but that the case made by the pleadings and adhered to by the plaintiff at every stage of the proceedings below, was one for use and occupation and for nothing else. The right to recover under the contract of 1858 was distinctly repudiated. Such a right is now asserted in this court for the first time. II. In equity the decree must conform to the pleadings. It is not permitted to sue on one contract and recover on another. No recovery is therefore possible in this case for breach of the contract of ferriage. The claim is not only wholly different from that sued for in the petition, but utterly inconsistent with it. The existence of the one depends upon the denial of the Opinion of the Court. other. Morris v. Tillson, 81 Illinois, 607, 615; Crocket v. Lee, 7 Wheat. 522, 527; Legal v. Miller, 2 Ves. Sen. 299; Shields v. Barrow, 17 How. 130, 144. III. A prayer for general relief cannot be used to convert a suit for use and occupation into one for breach of a contract of ferriage. It is a fundamental proposition that under a general prayer no relief can be granted which is inconsistent with the special prayer or with the case made by the bill. English v. Foxall, 2 Pet. 595, 612; Hobson v. McArthur, 16 Pet. 182, 195; Hayward v. National Bank, 96 U. S. 611. While a plaintiff who is doubtful of the relief to which he is entitled, may so frame his prayer, that if one species of relief is denied another may be granted, he is never permitted to rely on inconsistent claims. He is not permitted for instance to assert a will to be invalid, and at the same time to ask to take under it if it shall be held to be valid, Wright v. Wilkin, 4 De G. & J. 141; nor to ask the cancellation of a mortgage, or to redeem it, Micon v. Ashurst, 55 Alabama, 607; nor to pray to set aside a contract for fraud, or if that be denied to have it specially enforced, Shields v. Barrow, 17 How. 130. If the case could have been treated in the Circuit Court as one for breach of the contract of ferriage, the court would nevertheless have been bound to dismiss the bill, for the reason that the plaintiff offered no evidence to support an award of damage. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. When the railway company became the purchaser at judicial sale of the property, assets and franchises of the railroad company, it found the latter in possession of a tract of land upon Bloody Island in the Mississippi River, making use of the same for its tracks, depots, warehouses and other terminal facilities, and also sending to and receiving from St. Louis at this point its passengers and freight by steamers not its own. It knew, or was bound to know, that this property did not belong to the railroad company. As the record shows that it remained Opinion of the Court. in possession of these premises for the next fourteen years, using the same for some nine years of this time as they had before been used, sending its passengers and freight to and from St. Louis in the boats of the ferry company, and, in the language of the answer, "treated the contract as in full force and binding upon them," it must be assumed that it was fully informed of the ownership of such property, and the terms of the contract under which it was held and employed by the railroad company. (1) Under these circumstances what was the legal relation of the railway company to this contract? In a case between these same parties, (94 Illinois, 83,) the Supreme Court of Illinois held that the covenants contained in the contract of April, 1858, were not such as ran with the land, and that the relationship of landlord and tenant was not created by such contract between the ferry company and the railroad company. Indeed, the fact that the railway company and its receiver continued in the occupation of this property for over seventeen years, with the tacit consent of the ferry company, and without any suggestion of a tenancy or a demand for rent, is sufficient of itself to show that the relations between them were not those of landlord and tenant. Such relationship will never be implied when the acts and conduct of the parties are inconsistent with its existence. In Carpenter v. United States, 17 Wall. 489, 493, it was held by this court that no reason for the implication of a tenancy existed, "when an express contract or an arrangement between the parties shows that it was not intended by them to constitute the relation of landlord and tenant, but that the occupation was taken and held for another purpose." In that case, it was shown that the entry had been made in pursuance of an agreement to purchase, and it was held that the tenant was not liable for use and occupation if the purchase were actually concluded. The railway company was not the formal assignee of the interest of the railroad company in such a contract, nor could it become so under the eighth clause of the contract, without the consent of the ferry company. It is a well-established principle that the mere purchase of a railway under a fore Opinion of the Court. closure sale by a new corporation does not of itself make such new corporation liable for the obligations of the old one. Stewart's Appeal, 72 Penn. St. 291; Vilas v. Milwaukee &c. Railway, 17 Wisconsin, 497; Smith v. Chicago & Northwestern Railway, 18 Wisconsin, 17. The railway company, then, upon taking possession of the property of the railroad company, was at liberty to renounce the benefit of such contract, if it chose to do so, or to make such further arrangement with the ferry company as they might be able to agree upon. It did neither, but still maintained possession of the land. In view of the fact that the railway company used this property precisely as it had been used; improved it at great expense, by filling up low places and securing it from the overflow of the river; graded and paved the river front, erected buildings, paid the annual taxes, and, until 1871, employed the ferry company to transport its passengers and freight to and from the city-in short, in the language of the answer, doing and performing "all that the terms of the said contract required the said Ohio and Mississippi Railroad Company to do and perform," we think it must be held in a court of equity to have adopted such contract, and made it its own. This construction certainly consorts with the acts and conduct of both parties, between whom different modifications of the contract were proposed and discussed at different times from 1872 to 1875. Under the circumstances of this case, we agree with the conclusion of the special master, that the railway company acquired an equitable estate in the premises, of like character as the legal estate previously held by the railroad company, which estate was in equity unimpeachable, and that the railway company and the ferry company sustained the same relation as had previously existed under the deed between the railroad company and the ferry company; or, at least, that both parties are equitably estopped from denying that such was the case. It is not necessary that a party should deliberately agree to be bound by the terms of a contract to which he is a stranger, if, having knowledge of such contract, he deliberately enters into relations with one of the parties, which are only consistent with the adoption of such contract. If a |