Jackson ex dem. Shipley v. Moncrief

5 Wend. 26

Opinion

By the Court,

Savage, Ch. J.

In my opinion the contract was an agreement to convey only, and not a conveyance. It contains words of present purchase and sale, but those words must be construed in reference to the whole instrument, and by the concluding paragraph it is clear that regular conveyances by both parties were contemplated as the consummation of a contract which, until such conveyances should be executed, was inchoate. The possession was changed, but no title passed out of either the contracting parties. The judge was certainly right, therefore, in deciding that the legal title remained in the lessors.

Notice to quit was not necessary. The defendant was quasi tenant at will; but as between vendor and vendee no notice to quit is necessary. This has been several times so decided in this court. The cases are collected and commented on in Jackson v. Miller, 7 Cowen, 751.

The circumstances referred to at the trial, could not, I apprehend, vary the legal rights and duties of the parties; but if they did, Í do not perceive any evidence to prove that Shot-well enlarged the time for performance ; on the contrary he was constantly urging for performance. A formal demand was made on the 6th October, 1826, and on the 27th of the same month Freeman was unprepared, and wanted longer time, which Shotwell refused. Here was surely time enough. There was a sufficient notice given of the termination of the contract, this suit not being commenced till August, 1827. Freeman was lawfully in possession till October, 1826 ; but what passed then between him and Shotwell put an end to the contract. The possession under him thereafter ceased to be lawful. It was not necessary I apprehend, that he should reyMS6 t0 complete the contract; he did in fact neglect to do so; which was the same thing to the lessors.

* am 0P'n>°n that the plaintiffs should have had a verdict, and of course that a new trial.should be granted; costs to abide the event.