The opinion of the Court was delivered by
Huston, J.
—The court overruled all the objections made in the court below to the admission of deeds in evidence, and several bills of exception were taken ; in some of which there was error, such as admitting a deed to be read on proof of the handwriting of one witness, without proof that the other witness was dead, or that any inquiry had been made for him. I pass over these, because I suppose the court below intended to have the main and great question decided by this court.
Before I proceed to discuss this cause it may be proper to notice the case of Bagley v. Wallace, 16 Serg. & Rawle 245. The suit there was for an adjoining tract which Wallace had purchased from some one other than the plaintiff. He had shown a deed for the land. It was common in this state, at one time, to give leases to settlers on wild lands, with a clause giving a right to purchase. However it may have been, Wallace had bought out the person in possession, and then sold to one Joseph Miles, who died in possession; his administrators sold all his right, by order of the orphan’s court, to J. W. Robison, the agent of Wallace, who exchanged with defendant, and got other lands for it; and for the balance gave a mortgage to Wallace, on which suit was brought. In that case the defendant had given to Wallace another' tract of land, with, so far as appeared, a good title, and had got a bad title, and given a mortgage for the [150]*150balance. In the case before us the defendant has not yet given any thing. In that case this court did not investigate every point so fully as might have been done, because we held the opinion, so forcibly expressed by the judge in the opinion of the court, that the state would release its claim ; and, in point of fact, Chapman, having agreed to pay, applied to the legislature, who, by the act of the 15th of April 1834, released all right to the land he occupied ; but when the plaintiffs, at the same time, applied to obtain a release of the land in question, the defendant opposed the passage of the law ; and others situated as he is joined him. The defendant, then, comes before us as a person to whom the land was shown by Wallace ; who agreed to buy from him, supposing, we may admit, that Wallace had a title, but not inquiring whether he had one. Wallace, it seems, had no title ; he had agreed to purchase from, the plaintiff; but, so far as we can see, had paid nothing, and got no title. Defendant has paid nothing.
I admit, according to the opinion in Bagley v. Wallace, that the supreme executive council had no express power to make the partition ;
In England, whence our ancestors brought most of the principles which are the foundation of our law, the legal title must prevail in an ejectment; and this defendant, in that action, would not be heard. ' A purchaser on articles of agreement, who has been put into possession, and who has paid all the purchase money, is not heard in an ejectment; he must yield to the iegal title But he may go to a court of chancery, and there he may and will, if he makes out a proper case, be relieved; possession will be restored, and the vendor compelled to make a deed : but this is never done except where he has fulfilled, or offers to fulfil the contract on his part. No case can be found where a vendee under articles has been allowed to hold the land, and also to keep in his own pocket the price he agreed to pay for it. If the title is not good, he may refuse to accept; and, on delivering up the possession, may, in ordinary cases, recover any money he has paid. The law, and the practice under it, are the same in New York, and all the states where they have a court of chancery. Such a court, by the nature of its practice and forms, is peculiarly adapted to such cases. It, where the case requires it, gives its decrees, imposing duties and requiring acts to be done by each party ; and it suspends the final decision till inquiries are made under its direction, and modifies its final decree according to the result of such inquiries.
In this state we attain the objects by a different proceeding. A vendee under articles of agreement for the purchase of lands, pays or tenders the money due, and brings an ejectment to recover the possession ; and, if he has complied with his part of the contract, he recovers the possession. This is instead of a bill in chancery for specific performance; and here he will recover possession wherever a chancellor would decree specific performance.
On the other hand the vendor by articles, if he has complied with, or offered a compliance with his part of the agreement, may bring covenant or debt for the purchase money; or, if he prefers it, may bring an ejectment on his legal title. This is often called an ejectment to com pél the payment of the purchase money: but it maj*' eventuate in a verdict for the defendant if he has fulfilled his part of the contract; or there may, if money is due from the defendant, be a verdict for plaintiff, to be released on defendant paying the sum due, which sum is ascertained by the jury and forms a part of their verdict inserted on the record. Or if the defendant objects to the title of the plaintiff, or for any other cause wishes to rescind the contract, the plaintiff gets judgment, and the possession is restored to the seller. If such defendant has paid any part of the purchase money, he may, if his contract require it, recover it from the plaintiff by the proper action. An ejectment, then, by a vendor may [152]*152be to compel the payment of money; but defendant may always make it eventuate in rescinding the contract, by suffering plaintiff to recover the possession.
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The opinion of the Court was delivered by
Huston, J.
—The court overruled all the objections made in the court below to the admission of deeds in evidence, and several bills of exception were taken ; in some of which there was error, such as admitting a deed to be read on proof of the handwriting of one witness, without proof that the other witness was dead, or that any inquiry had been made for him. I pass over these, because I suppose the court below intended to have the main and great question decided by this court.
Before I proceed to discuss this cause it may be proper to notice the case of Bagley v. Wallace, 16 Serg. & Rawle 245. The suit there was for an adjoining tract which Wallace had purchased from some one other than the plaintiff. He had shown a deed for the land. It was common in this state, at one time, to give leases to settlers on wild lands, with a clause giving a right to purchase. However it may have been, Wallace had bought out the person in possession, and then sold to one Joseph Miles, who died in possession; his administrators sold all his right, by order of the orphan’s court, to J. W. Robison, the agent of Wallace, who exchanged with defendant, and got other lands for it; and for the balance gave a mortgage to Wallace, on which suit was brought. In that case the defendant had given to Wallace another' tract of land, with, so far as appeared, a good title, and had got a bad title, and given a mortgage for the [150]*150balance. In the case before us the defendant has not yet given any thing. In that case this court did not investigate every point so fully as might have been done, because we held the opinion, so forcibly expressed by the judge in the opinion of the court, that the state would release its claim ; and, in point of fact, Chapman, having agreed to pay, applied to the legislature, who, by the act of the 15th of April 1834, released all right to the land he occupied ; but when the plaintiffs, at the same time, applied to obtain a release of the land in question, the defendant opposed the passage of the law ; and others situated as he is joined him. The defendant, then, comes before us as a person to whom the land was shown by Wallace ; who agreed to buy from him, supposing, we may admit, that Wallace had a title, but not inquiring whether he had one. Wallace, it seems, had no title ; he had agreed to purchase from, the plaintiff; but, so far as we can see, had paid nothing, and got no title. Defendant has paid nothing.
I admit, according to the opinion in Bagley v. Wallace, that the supreme executive council had no express power to make the partition ;
In England, whence our ancestors brought most of the principles which are the foundation of our law, the legal title must prevail in an ejectment; and this defendant, in that action, would not be heard. ' A purchaser on articles of agreement, who has been put into possession, and who has paid all the purchase money, is not heard in an ejectment; he must yield to the iegal title But he may go to a court of chancery, and there he may and will, if he makes out a proper case, be relieved; possession will be restored, and the vendor compelled to make a deed : but this is never done except where he has fulfilled, or offers to fulfil the contract on his part. No case can be found where a vendee under articles has been allowed to hold the land, and also to keep in his own pocket the price he agreed to pay for it. If the title is not good, he may refuse to accept; and, on delivering up the possession, may, in ordinary cases, recover any money he has paid. The law, and the practice under it, are the same in New York, and all the states where they have a court of chancery. Such a court, by the nature of its practice and forms, is peculiarly adapted to such cases. It, where the case requires it, gives its decrees, imposing duties and requiring acts to be done by each party ; and it suspends the final decision till inquiries are made under its direction, and modifies its final decree according to the result of such inquiries.
In this state we attain the objects by a different proceeding. A vendee under articles of agreement for the purchase of lands, pays or tenders the money due, and brings an ejectment to recover the possession ; and, if he has complied with his part of the contract, he recovers the possession. This is instead of a bill in chancery for specific performance; and here he will recover possession wherever a chancellor would decree specific performance.
On the other hand the vendor by articles, if he has complied with, or offered a compliance with his part of the agreement, may bring covenant or debt for the purchase money; or, if he prefers it, may bring an ejectment on his legal title. This is often called an ejectment to com pél the payment of the purchase money: but it maj*' eventuate in a verdict for the defendant if he has fulfilled his part of the contract; or there may, if money is due from the defendant, be a verdict for plaintiff, to be released on defendant paying the sum due, which sum is ascertained by the jury and forms a part of their verdict inserted on the record. Or if the defendant objects to the title of the plaintiff, or for any other cause wishes to rescind the contract, the plaintiff gets judgment, and the possession is restored to the seller. If such defendant has paid any part of the purchase money, he may, if his contract require it, recover it from the plaintiff by the proper action. An ejectment, then, by a vendor may [152]*152be to compel the payment of money; but defendant may always make it eventuate in rescinding the contract, by suffering plaintiff to recover the possession.
I think no chancellor ever decreed, or was asked to decree, except under peculiar circumstances, some of which 1 will hereafter mention, that a vendee under articles of agreement, who has entered into possession under those articles, shall hold the land, and not pay the price. The allegation that he may do so is peculiar to some lawyers in some parts of this state, and is a discovery not many years old. It has not, however, received countenance in this court, or much in any court. We have adopted the chancery principle, that he who asks equity must do equity. The vendee, then, who has entered under articles of agreement must pay for the land, or restore the possession to his vendor; neither law nor equity, nor the common seftse of justice as understood by every man, will permit that he shall agree to pay for land and obtain possession under that agreement, and then retain the possession and never pay. If he dislikes the title, and does not wish to pay, he can rescind the contract, restore the land, and keep his money, and, in some cases, recover damages; but cannot obtain the property and keep the price.
Where he did not enter under the agreement, the law may be otherwise. To be more explicit, every person in possession of land, not under contract with any person, may continue in possession until some one, having title, asks to remove him. Suppose a man settles on land to hold it by-improvement, as he may hold it against every man if it is vacant, or against one having right to it if permitted to continue his possession twenty-one years, claiming it as his own ; he may, in process of time, hear that it is appropriated, or he may see some lines or corners which induce a suspicion that it is appropriated by warrant and survey. I come to him and inform him I am the owner, and by falsehood or threats I induce him to enter into articles of agreement to purchase the land and pa.y me, or to take a lease and pay me rent and deliver possession to me at the end of the lease : he discovers I have no title to the land, and refuses to pay or give up possession ; I cannot recover from him in ejectment, nor recover ibe money in debt or covenant;
I did not put him in possession; he did not enter in pursuance, or in consequence, of his contract with me ; he got nothing from me ; his possession was good against me; he was deceived by me. See Hamilton v. Marsden, 6 Binn. 45; Miller v. M’Brier, 14 Serg, & Rawle. But if I had put him in possession, if he had entered in pursuance of his lease or contract with me, lie cannot set up an outstanding title against me, nor purchase an adverse title and defend under it against me. Gallaway v. Ogle, 2 Binn. 468; Congregation v. Caufman, 6 Binn. 62.
A man may have a title to land by warrant and survey, by improvement, or otherwise, and there may be an older warrant and survey, or title, in some other way better, existing in some third person; but if the [153]*153owner of the inferior title can take actual possession, by himself or a tenant, or one claiming under him, and retain that possession twenty-one years, the title may become perfect. Such person may be anxious to get actual possession by himself or some one under him; and if he has a title, though defective at the time, against some third person, and makes a lease to a man who enters under such lease, or enters into articles to sell to a man who goes into possession under those articles, such tenant or vendee on articles, cannot hold the land and pay no rent or no purchase money—he cannot buy the adverse title and set it up ; he must go out of possession and restore the property to his landlord or vendor, and then he may bring suit on his adverse title, and, if it is good, recover on it. Good faith, honesty, and the peace and order of the community require that he who has acquired possession under a contract not tainted by fraud, should not use that possession to the injury of him from whom he received it. If such purchaser of a defective title is sued for the purchase money, I don’t soy it can be recovered from him in all cases; he may show that the seller cannot give him a good title, and ask to have the contract rescinded, and it maybe rescinded ; but if he obtained the possession under that contract, if it is rescinded, it must be rescinded in whole and on both sides, and he gets clear of the contract by restoring the possession and moving off the land. But if such vendee continues in possession, undisturbed, until the statute of limitations has made the title perfect, he cannot then resist the payment of the money in a suit for it; much less can he sustain a defence against an ejectment by a vendor—which form of action leaves it optional with him to pay the money, or rescind the contract and give up the land. To one-fourth of the land, and to four-fifths of the remaining three-fourths, the title is unexceptionable, and for so much there is no colour of defence. As to the remaining fractional part, there might have been colour of objection, .and after what, the legislature haye done in the case of Chapman, above mentioned, it is no more than colour; but under the circumstances of this case, before detailed, that the executive council knew all the facts in 1789, a deed was made to the state and accepted and filed in 1800, and nothing done to assert the state’s right for half a century after receiving pay for the land from Nicholson ; that whether Nicholson knew of the adverse title before the proceedings in 1789, is doubtful; that there is no colour for supposing the plaintiffs knew of any adverse title till more than thirty years after they took their mortgage; that some hundreds have laboured, and bought and sold parts of this stale claim, for half a century; it would be too much to suppose the state will ever disturb the defendant; and if to this we add, that, when asked, the state released to one, and'defendant has endeavoured to'prevent, and perhaps his endeavour and that of those who joined him, did prevent, a release by the state to the plaintiffs, when it is not easy to see any motive for his opposition, except the dishonest wish to keep property apd not pay for it, we are of [154]*154opinion that this small stale possibility of a claim is not, to this man, a defence.
As to the improvements, it is idle to talk about a man keeping the property of another, because he has improved on it; he is not asked to pay for his improvements ; he is only called on to pay a dollar an acre, and interest since the contract. The whole evidence offered, if all true, is no defence, and clearly, what cannot avail, if proved, ought not to go to the jury.
Judgment reversed, and a venire de novo awarded.
Though the sixth section of the act of the 6th of March 1778, says: “ The president or vice-president shall inquire as to all estate, real and personal, &c. &e., and sell; and under the hand of the president or vice-president, and the state seal, convey the said real estates, after the claims relating to them, respectively shall he determined; or may dispose of them in the manner hereinafter provided:’’ that is, sell them at public auction.