I. The agreement between Deputy and defendant was clearly inadmissible, it being foreign to the issue raised by the answer. The first rule governing the production of evidence is, " that the evidence offered must correspond with the allegations, and be confined to the point in issue." (1 Greenl. Ev. sec. 51; Cowan v. Price, 1 Bibb, 175; Morehead v. Ratler, Id. 317; 2 Id. 4, 7.)
II. Conceding, for the purposes of the argument, that the bond was admissible, defendant did not show, nor even attempt to show, that he had complied or offered to comply with the condition precedent which he was to perform in order to entitle him to a conveyance, or to enable him to obtain any benefit from the agreement.
The instrument by its very terms makes " the payment of the note, principal and interest, and one-half of all the taxes assessed on said premises," a positive condition to be performed before Wozencraft was entitled to a conveyance; and the rule is well settled that a party seeking to avail himself of a contract containing such a condition is entitled to no relief " unless he has shown himself ready, desirous, prompt, and eager" to perform the condition.
It is said that to enable Mrs. Willis to succeed in this action she must have been the owner of the note, and must have demanded payment and been refused. We respectfully submit, that the rule of law is directly the converse of that stated, and this Court has so expressly decided.
In Knowles v. Shreve , 17 Cal. 275, where the bond was almost identical with the one under consideration, this Court held, that it was necessary to prove a demand by the obligees upon the obligor, tomake the deed and say: " the weight of authority is, that a demand must be made." And in Fuller v. Hubbard & Williams, 6 Cowen, 13, it was decided that where one agrees to convey land on the payment of money, the vendee must not only tender or pay the money, but he must demand a conveyance.
III. While it is true that the vendee is treated in equity as the equitable owner of the land, but this is only for some purposes, (such as devise, descent, specific performance, etc.,) but not for any purpose relating to any question fairly involved in this case. Equity does not regard him as entitled or as having any right to the possession, nor would equity tolerate him in possession for a moment, unless it were with the assent of the vendor. A simple contract to convey at some future time, silent about possession, gives the vendee no right to enter into the possession or intermeddle with the land in any way. (Suffern v. Townsend, 9 John. 35; Spencer v. Tobey, 22 Barb. 260; Cooper v. Stower, 9 John. 331; Kellogg v. Kellogg, 6 Barb. S.C. 116; Talbot v. Chamberlain, 3 Paige's Ch. 219.)
It is true, that the contract in the case at bar does give the right of possessionto the vendee, but that right only extends and was only intended to extend until the purchase money became due, when if not paid, the possession reverted to the vendor. This is the fair interpretation of the contract, and the only one the law can put on it. (See Wright v. Moore, 21 Wend. 230; Mitchell v. De Roche, 1 Yates, 12.)
That an action for rents and profits or use and occupation will not lie against a vendee is undisputed, as the relation of landlord and tenant can only exist by express or implied agreement. The vendee entering with the consent of the vendor, at most, only establishes a quasi-tenancy at will, and the moment he neglects to comply with his contract he can be treated as a trespasser. (See Smith v. Stewart, 6 John. 46, where the doctrine is thoroughly examined; all the New York cases on this point will be found collected in Jackson v. Miller, 7 Cow. 747.)
At common law a tenant at will was not entitled to notice to quit. Arguello v. Edinger , 10 Cal. 159, simply decides that the taking possession by a vendee, under a parol agreement to purchase, is a sufficient part performance to take the contract out of the operation of the Statuteof Frauds. The case of Wright v. Moore, 21 Wend. 230, is in point, and settles the law applicable to this case to be as claimed by respondent.
It has been admitted all through this case, that the right to a conveyance depended upon the payment of the purchase money. How can it reasonably be said, that after the time of payment had elapsed, and no payment had been made, that the appellant could rightfully continue in possession? Possession is the only value that title gives. According to the position assumed the defendant was properly in possession after non-payment with a right to continue such possession. What then becomes of plaintiff's title? Is it to be a mere barren title producing no fruits? Giving the right of possession to the defendant would be virtually divesting the plaintiff of her title; she would retain the shadow, while the defendant enjoyed the substance. He who seeks equity must do equity, is a familiar maxim; and the appellant not having offered to pay the note given for the purchase money, is not entitled to the equitable interposition of the Court. While it is true that equity, under certain circumstances, treats things as done where they are only agreedto be done, yet it is equally true " that nothing is looked upon in equity as done but what ought to be done," and the appellant not having complied with his agreement cannot ask, nor ought the Court to consider the conveyance as made.
JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
CROCKER, Judge
On petition for rehearing, Crocker, J. delivered the following opinion. Norton, J. concurring:
The questions involved in this case are important, and as the counsel for the plaintiff in their petition for a rehearing have referred to some authorities not cited before, it may be proper to notice them.
Whether, in equity, a vendee, in a simple contract to convey at some future time, which is silent about the possession, has a right to take and hold possession before the conveyance, is a question not before us, as the contract in this case specially gives him the right of possession. But it is now urged that this right of possession extends only to the time that the purchase money became due, and if the money was not then paid, the right of possession in the vendee ceased, and the same revested in the vendor. In this the plaintiff is in error. Such are not the terms of the contract, nor is such the proper equitable construction of it. There are no words in the agreement thus limiting the right of possession vested in the vendee. In support of the position that the law so construes it, the plaintiff cites us to the cases of Wright v. Moore, 21 Wend. 230, and Mitchell v. De Roche, 1 Yeates, 12.
The case in Wendell was an action of ejectment at law, and therefore governed purely by legal principles. The agreement of the vendor contained a covenant that the vendee might " have quiet and full possession of the said premises at any time after the payment" of the first instalment of the purchase money. The Court say that " though the defendant's equitable title may be clear and perfect, its enforcement belongs exclusively to chancery." But even without that remark the Court based its judgment entirely upon the legal principles governing such cases, and it does not, therefore, govern the present case. The case in Yeates is not in point, as it does not appear that there was any agreement on the part of the vendor that the vendee should take and hold the possession. That was an early case in Pennsylvania, in which these questions do not seem to have been fully considered, and it is substantially overruled by the later decisions of that Court referred to in our former opinion.
The question whether a demand and notice to quit is necessary in a case of this kind was not presented by the defendant as a point in the case, and the reference to it in our former opinion was not for the purpose of settling or determining it, but merely as showing how the rights of vendor and vendee were treated by writers upon this subject and the authorities.
The plaintiff insists that the decision of this Court leaves her with a mere barren title, and that leaving the defendant in possession virtually divests her of her title. The plaintiff purchased the mere legal title, subject to the equitable title of the defendant. Equity deems the interest on the purchase money as an equivalent for the value of the rents and profits, or the use and occupation of the premises by the defendant.
Equity treats the vendee as the owner of the property, and as such entitled to its rents and profits; and the vendor as the owner of the purchase money, and as such entitled to the interest thereon. (2 Sugden on Vendors, 254, 793, citing numerous cases.) If the plaintiff is the owner of or entitled to receive the purchase money due from the defendant, she has an ample remedy to enforce the vendor's lien in equity, and have the interest purchased by the defendant sold for the payment of the debt, and the interest she will receive will be an equivalent for the possession. If she is not entitled to the purchase money, she holds the mere legal title, subject to the equities of the defendant under the agreement. As that agreement gives the defendant the right to the possession, to oust him from that possession would be divesting him of a right vested in him by the agreement. The holder of the demand for the purchase money has the right to grant the defendant such lenity as he sees fit about its payment, and the plaintiff has no right to complain that the defendant has not paid the purchase money, unless it is due to her, when she has an ample remedy for enforcing that demand. We see no valid reason for granting a rehearing in this case.
The rehearing is therefore denied.