SEABURY vs. DOE ex dem. STEWART & EASTON, 22 Ala. 207

GrIBBONS, J. 'The charge of the court below as given to the jury, in our opinion, under the proof, contains no error. It is predicated upon principles of law, now too well established to be questioned, or to require affirmative argument. The charge asserts simply, that where a party under an ex-ecutory agreement of purchase enters into the possession of lands, and fails to comply with the terms of his contract in the payment of the purchase money, the vendor has the right to bring ejectment against him and recover back his lands.

The charge further asserts, that in such a case, the vendee cannot dispute the title of the vendor, nor set up an outstanding title to defeat his recovery ; that the possession of the vendee is not adverse to the vendor, in the legal sense of that term, but consistent with his title, and therefore the vendor has the right, even before he regains the actual pedis possessio of the land, to pass the title to a third party by deed; and if he is put to a suit for the recovery of the premises, he has the right to take them free of any charge for improvements, which may have been made while in the possession of such vendee.

All of these propositions we think correct as applied to the proof, and the court was warranted in announcing them to the Hamilton v. Lit. Sel. Cases 444; Baker v. Gittings, 16 Ohio 485; Wright v. Moore, 21 Wend. 230; Whiteside v. Jackson, 1 ib. 418; 4 John. 230; 6 ib. 34. The vendor of premises, under circumstances such as are disclosed by the record, after such default in payment of the purchase money, has the right, at his election, to treat the vendee as his tenant, and recover against him for the use and occupation of the land, (Davidson v.

Ernest, 7 Ala. 817;) or he may treat him as a trespasser and eject him by suit. Jackson v. Camp, 1 Cowen 605; 7 ib. 751. The first charge asked by the defendant was, in our opinion, correctly refused. This was, that the default of Seabury in the non-payment of the purchase money, did not rescind the contract between him and Kennedy or his grantees, but that in order to effect this, it was necessary to have given Seabury notice. In no view that we can take of this case under the proof, can we see how Seabury was entitled to notice.

He had violated his agreement in the non-payment of the purchase money stipulated, and his- duty was, after such default, to pay the money, or restore the property to his vendor if he would receive it. The vendee being in default, the vendor has the right to elect whether he will abandon the contract and re-enter upon his premises, or hold the ven-dee to his agreement, if the contract is such a one as can be enforced by compelling a specific performance; but in neither case has he 'the right to any notice of the election of the vendor, other than what the process would give him when proceedings are commenced.

There was no error in refusing to give the charge as asked; and, without affirming the correctness of the charge as modified and given by the court, we simply say, there is nothing in it of which the defendant can complain. The second charge asked, we think, was also properly refused. It assumes that Kennedy, notwithstanding the default of Seabury, and after such • default had continued for nine years, had no right to part with his title, after having put Seabury in possession of the land under his agreement.

It assumes, that one party to an agreement, in which there are mutual stipulations, can wholly neglect those that rest upon him, and yet hold the other party to the faithful observance of'bis. It assumes also, that where a landlord conveys by deed the freehold to another, the tenant is absolved from all allegiance to the grantee. To none of these propositions can we assent. Kennedy, or Kennedy’s executors, after the default of Sea-bury, had the right to consider him their tenant, or as a trespasser. His possession was subjected to their title, and was, in law, their possession.

If they conveyed the title to a third party, that third party stood in their shoes. This charge was correctly refused, and we see no error in that which was substituted for it by the court, as the latter was but an affirmation of what had been previously given in charge to the jury- The theory of the third charge asked is correct, as applied to the generality of cases; but owing to the peculiar position of the defendant, it was not applicable to him, and was correctly refused.

The mere fact that the plaintiff himself shows, in the course of his proof, an outstanding title, cannot vary the case from what it would be if the defendant on his part showed or offered to show the same fact. His position does not permit him to take advantage of it, come from what source it may. The fourth charge asked was, we think, also properly refused. It is difficult to comprehend how the fact, that ¥m, C.

Easton had been the trustee in a deed made by Seabury for the benefit of "Wiswall, of these same premises, could operate as an estoppel to Stewart & Easton, so as to prevent them from recovering the property on a title acquired from Kennedy. The deed from Seabury to Easton, trustee, conveyed to Easton such title, and only such title, as Seabury had. If he had any title to pass by the deed, so far from operating as an estoppel to Easton, it would have the opposite effect.

The fifth charge asked, we think, was correctly refused also; because, under the proof before the jury,, and the charges of the court previously given, it was not demanded in order to secure the rights of the defendant. The charge, however, as given by the court after such refusal, was all that the defendant would have been entitled to, if the state of the evidence had created a demand for it, in order to prevent an injury from being inflicted upon him by the verdict.

The next matter of exception presented by the record is, that on the trial the name of Snsan Kennedy was permitted to remain in the declaration, purporting a sole demise, after the names of William Kitchen and Samuel L. Kitchen had been stricken out.

The record shows that the names of the latter were stricken out on the motion of the defendant, and it would be nothing less than the most manifest error that would induce this court to sustain an exception where the matter complained of was brought about by the party himself assigning the error, But we see no reason why the name of Susan Kennedy could not as well stand alone in the declaration, as when joined with the other heirs of Samuel Kitchen, deceased. Adams on Ejectment 210. If there was a recovery upon it, such recovery could only have been for such, interest as she had.

But there was no error in laying a demise in her name alone. This decision of the court below, however, was a matter within its discretion, and not revisable on error. The only remaining matter of exception is, that illegal evidence was permitted to go to the jury. This consisted of the declarations of Samuel Kitchen. In the view that we have taken of this case, this evidence becomes entirely irrelevant ; and whether the court erred or not in permitting it to go to the jury, we do not now think it necessary to decide. The plaintiffs, in offering it, were doing what the law did not require of them.

Their case was made out without it. It was offered to rebut an outstanding title, when such a defence was not in the power of the defendant to make; and if the court below even had committed an error, we should not have reversed the case for that reason. It would have been an error in no way affecting the rights of the defendant, and he could not be heard in complaint of it. We find no error in the record, and the judgment of the court below is affirmed.