Crocker, J. delivered the opinion of the Court—Norton, J. concurring.
This is an action to recover the possession of several lots in the City of San Bernardino, the plaintiff in her complaint claiming to be the owner of the whole interest in them. The. defendant in his answer sets forth that on the twentieth day of March, 1858, one Deputy was the owner of the premises ; that on that day, Deputy sold and conveyed the undivided half of the premises, by an agreement duly executed, acknowledged, and recorded, to the defendant, and under it he entered and ever since has held the lawful possession. The case was tried by the Court, who found for the plaintiff, and rendered judgment accordingly for the restitution of the possession of the entire estate to the plaintiff.
Both parties claim title under Deputy. On the twentieth day of March, 1858, Deputy executed to the defendant a title bond, in the penal sum of $1,875, by the conditions of which, after setting forth that the defendant had contracted to purchase of him the undivided half of the lots in controversy, and that the defendant was that day in peaceable possession of the premises in common with him, with the full right to an undivided half of all the rents and profits of the premises from and after that date, and that he had executed his note for $1,875, due in twelve months, as the price of the land, it was agreed that on the payment of the note and one-half of all the taxes thereafter assessed on the premises, Deputy was to make, execute, and acknowledge to the defendant a good and sufficient deed for the conveyance of the premises, and then the bond to be void. This agreement or title-bond was duly recorded on the third day of May, 1858. On the eighth day of July, 1858, Deputy conveyed the premises to one Stapleford, and on the eighth day of September, 1858, Stapleford conveyed the same to the plaintiff.
The agreement executed by Deputy to the defendant clearly [614]*614vested in the latter the equitable title as vendee, with the possession and right of possession of the property sold, being the undivided one-half of the premises. To a certain extent they became tenants in common of the property, Deputy holding the legal title to the entire estate, subject to the equitable title to the undivided half vested in the defendant, and the latter having the equitable title to the half, and the possession under it. Both Stapleford and the plaintiff had notice of the rights of the defendant by the record of the agreement, and his possession under it. The defendant seems to have recognized her rights, as, in September, 1858, she entered into and took possession of portions of the house situated on the premises, occupying several suits of rooms in it, to which the defendant seems to have made no objection. She continued in possession for some time, and there is no evidence that the defendant required her to leave. The Court found that the defendant was in the possession, “ holding adversely to the plaintiff, and denies her title to an undivided half of the premises.” This seems to be founded entirely upon a remark of one witness, H. M. Willis, that the defendant “ is now in possession of the premises, holding against plaintiff, and denies her title.” No explanation was given or circumstances stated corroborating this remark. It nowhere appears that the plaintiff ever notified him of her title, or ever demanded the possession, or requested to be let into the possession of her share with him, nor are there any special facts tending to show either an actual or constructive ouster of the plaintiff by the defendant, and we think neither this statement of the witness, nor the facts as found by the Court, are sufficient to establish an ouster.
The rights of the parties to the possession of this property depend entirely upon the agreement. There is no evidence showing whether the defendant ever paid the purchase money or not, and no proof that payment was ever demanded, or any other facts showing an abandonment by him of the purchase or a refusal by him to complete it. No proof was offered that Deputy, or those claiming under him, ever tendered a deed in pursuance of the agreement, or offered to deliver it upon payment of the purchase money. He may or may not have paid the purchase money at the time it was due, but the holder of the note had a perfect right to extend the [615]*615time of payment or grant any indulgence he might see proper, and no one had any right to complain. The right to a conveyance was dependent upon the payment Of the purchase money, but the right of possession was, under the agreement, immediate and continuous, and not dependent upon such payment. Deputy had a clear right to make such an agreement, and it bound him and the plaintiff claiming under him. The duty of a Court is to enforce contracts fairly and honestly made. The defendant has lost no rights vested in him under this agreement, and the right of possession conferred by it is clearly a good defense to this action. The fact that the legal title to this undivided half of the premises is vested in the plaintiff, and that the defendant’s title thereto is merely equitable, can make no difference. A mere equitable title to land, if it is of such a character as entitles the holder to the possession in equity, is a sufficient defense, under our system of practice, to an action for the possession, brought even by the holder of the legal title. For, whenever a right claimed under the rules of the common law is denied, or governed, or controlled by the principles administered by Courts of Equity, the latter will prevail over the former, and it is the duty of the Courts in administering justice to decide and render judgment accordingly. It follows that it is the duty of the plaintiff to show both a legal and equitable right to the possession before she is entitled to recover. It is a general rule, however, that proof of a legal title is sufficient, as the presumption is that the holder- of the legal title is entitled to the possession ; but this presumption is liable to be rebutted by proof of an equitable title in another, of a character to carry the right of possession. In the present case the defendant showed more than the mere equitable title in the special agreement for the possession.
The respondent refers us to the case of Gavin v. Hagen (15 Cal. 208), in which it was held that a vendee of real estate, under a contract of purchase which was silent as to possession, had no right to the possession until a performance of the conditions of the contract to entitle him to a deed, and that the vendor or his assignee could maintain an action to recover the possession against the vendee at any time before such performance. There are very strong grounds for doubting the correctness of that decision upon these [616]*616points, especially as the rules of equity upon the question seem to have been entirely overlooked, and it may be well to refer to them, because, as we have shown, they should govern and control in cases of this kind.
The general principle is that, from the time of the contract for the sale of the land, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase money, a trustee for the vendor, who has a lien upon the land therefor. And every subsequent purchaser from either, with notice, becomes subject to the same equities as the party would be from whom he purchased. Courts of Equity treat such contracts precisely as if they had been specifically executed. The vendee is treated in equity as the equitable owner of the land, and the vendor is treated as the owner of the money.
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Crocker, J. delivered the opinion of the Court—Norton, J. concurring.
This is an action to recover the possession of several lots in the City of San Bernardino, the plaintiff in her complaint claiming to be the owner of the whole interest in them. The. defendant in his answer sets forth that on the twentieth day of March, 1858, one Deputy was the owner of the premises ; that on that day, Deputy sold and conveyed the undivided half of the premises, by an agreement duly executed, acknowledged, and recorded, to the defendant, and under it he entered and ever since has held the lawful possession. The case was tried by the Court, who found for the plaintiff, and rendered judgment accordingly for the restitution of the possession of the entire estate to the plaintiff.
Both parties claim title under Deputy. On the twentieth day of March, 1858, Deputy executed to the defendant a title bond, in the penal sum of $1,875, by the conditions of which, after setting forth that the defendant had contracted to purchase of him the undivided half of the lots in controversy, and that the defendant was that day in peaceable possession of the premises in common with him, with the full right to an undivided half of all the rents and profits of the premises from and after that date, and that he had executed his note for $1,875, due in twelve months, as the price of the land, it was agreed that on the payment of the note and one-half of all the taxes thereafter assessed on the premises, Deputy was to make, execute, and acknowledge to the defendant a good and sufficient deed for the conveyance of the premises, and then the bond to be void. This agreement or title-bond was duly recorded on the third day of May, 1858. On the eighth day of July, 1858, Deputy conveyed the premises to one Stapleford, and on the eighth day of September, 1858, Stapleford conveyed the same to the plaintiff.
The agreement executed by Deputy to the defendant clearly [614]*614vested in the latter the equitable title as vendee, with the possession and right of possession of the property sold, being the undivided one-half of the premises. To a certain extent they became tenants in common of the property, Deputy holding the legal title to the entire estate, subject to the equitable title to the undivided half vested in the defendant, and the latter having the equitable title to the half, and the possession under it. Both Stapleford and the plaintiff had notice of the rights of the defendant by the record of the agreement, and his possession under it. The defendant seems to have recognized her rights, as, in September, 1858, she entered into and took possession of portions of the house situated on the premises, occupying several suits of rooms in it, to which the defendant seems to have made no objection. She continued in possession for some time, and there is no evidence that the defendant required her to leave. The Court found that the defendant was in the possession, “ holding adversely to the plaintiff, and denies her title to an undivided half of the premises.” This seems to be founded entirely upon a remark of one witness, H. M. Willis, that the defendant “ is now in possession of the premises, holding against plaintiff, and denies her title.” No explanation was given or circumstances stated corroborating this remark. It nowhere appears that the plaintiff ever notified him of her title, or ever demanded the possession, or requested to be let into the possession of her share with him, nor are there any special facts tending to show either an actual or constructive ouster of the plaintiff by the defendant, and we think neither this statement of the witness, nor the facts as found by the Court, are sufficient to establish an ouster.
The rights of the parties to the possession of this property depend entirely upon the agreement. There is no evidence showing whether the defendant ever paid the purchase money or not, and no proof that payment was ever demanded, or any other facts showing an abandonment by him of the purchase or a refusal by him to complete it. No proof was offered that Deputy, or those claiming under him, ever tendered a deed in pursuance of the agreement, or offered to deliver it upon payment of the purchase money. He may or may not have paid the purchase money at the time it was due, but the holder of the note had a perfect right to extend the [615]*615time of payment or grant any indulgence he might see proper, and no one had any right to complain. The right to a conveyance was dependent upon the payment Of the purchase money, but the right of possession was, under the agreement, immediate and continuous, and not dependent upon such payment. Deputy had a clear right to make such an agreement, and it bound him and the plaintiff claiming under him. The duty of a Court is to enforce contracts fairly and honestly made. The defendant has lost no rights vested in him under this agreement, and the right of possession conferred by it is clearly a good defense to this action. The fact that the legal title to this undivided half of the premises is vested in the plaintiff, and that the defendant’s title thereto is merely equitable, can make no difference. A mere equitable title to land, if it is of such a character as entitles the holder to the possession in equity, is a sufficient defense, under our system of practice, to an action for the possession, brought even by the holder of the legal title. For, whenever a right claimed under the rules of the common law is denied, or governed, or controlled by the principles administered by Courts of Equity, the latter will prevail over the former, and it is the duty of the Courts in administering justice to decide and render judgment accordingly. It follows that it is the duty of the plaintiff to show both a legal and equitable right to the possession before she is entitled to recover. It is a general rule, however, that proof of a legal title is sufficient, as the presumption is that the holder- of the legal title is entitled to the possession ; but this presumption is liable to be rebutted by proof of an equitable title in another, of a character to carry the right of possession. In the present case the defendant showed more than the mere equitable title in the special agreement for the possession.
The respondent refers us to the case of Gavin v. Hagen (15 Cal. 208), in which it was held that a vendee of real estate, under a contract of purchase which was silent as to possession, had no right to the possession until a performance of the conditions of the contract to entitle him to a deed, and that the vendor or his assignee could maintain an action to recover the possession against the vendee at any time before such performance. There are very strong grounds for doubting the correctness of that decision upon these [616]*616points, especially as the rules of equity upon the question seem to have been entirely overlooked, and it may be well to refer to them, because, as we have shown, they should govern and control in cases of this kind.
The general principle is that, from the time of the contract for the sale of the land, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase money, a trustee for the vendor, who has a lien upon the land therefor. And every subsequent purchaser from either, with notice, becomes subject to the same equities as the party would be from whom he purchased. Courts of Equity treat such contracts precisely as if they had been specifically executed. The vendee is treated in equity as the equitable owner of the land, and the vendor is treated as the owner of the money. This is a consequence of the common doctrine of Courts of Equity, that where things are agreed to be done they are to be treated for many purposes as if they were actually done. (2 Story’s Equity, Secs. 789, 790, 1212.) A purchaser may, with the concurrence of the vendor, safely take possession of the estate at the time the contract is entered into. (1 Sugd. on Vendors, 9, 12.) Where a purchaser is let into possession on a treaty for purchase, he does not become tenant to the seller; and if the seller cannot make a title, it is doubtful whether an action will, under any circumstances, lie against the purchaser. (1 Sugd. on Vendors, 263, 311.) Such possession is lawful until the vendor puts an end to the contract. (Jackson v. Moncrief, 5 Wend. 29.) And an action for rents and profits, or use and occupation, will not lie against a vendee where the contract of sale, though unperformed, is still in full force. (Johnson v. Beauchamp, 9 Dana, 125; Jones v. Tipton, 2 Id. 295; Howard v. Shaw, 8 M. & W. 118; Little v. Pearson, 7 Pick. 301.) And as the possession of the vendee is lawful, an ejectment will not lie against the purchaser without a demand of possession and refusal to quit. (1 Sugd. on Vendors, 264, 312.) The taking possession by the vendee is a part performance of the contract in equity, sufficient to take the contract out of the Statute of Frauds, and the contract prevents his being treated as a trespasser. (Arguello v. Edinger, 10 Cal. 159.) The position of a vendor where the purchaser is in possession under the [617]*617contract is analogous to that of a mortgagee. (Salmon v. Hoffman, 2 Cal. 143.)
In Pennsylvania, where they have no Courts of Chancery, the Courts have administered equity in common law actions, and in actions of ejectment they enforce the rights of the parties in accordance with the rules and principles of equity. In that respect their practice is analogous to that of this State under the Code. The equitable title for many purposes is treated in the same manner as the legal title; equity considering that as done which a Chancellor would decree to be done, and for this reason the owner of the equitable title may support ejectment (Schuylkill Nav. Co. v. Farr, 4 Watts & Sergeant, 374; Willing v. Brown, 7 S. & R., 467; Thomas v. Wright, 9 Id. 91) even against the holder of the legal title. (Presbyterian Congregation v. Johnson, 1 Watts & Serg. 56.)
In ejectment by the vendor against the vendee in possession, the latter may maintain the possession, provided he has complied with his contract, or offers to comply with it by a tender of the purchase money on the trial of the cause. The rights of the defendant are not defeated by non-payment of the purchase money when it became due. (Marlin v. Willink, 7 S. & R. 297.) And the vendor cannot turn the vendee out of possession without rescinding the bargain, restoring the purchase money paid, and paying for the intermediate improvements. (Richardson v. Kuhn, 6 Watts, 299.) When by the terms of the contract possession was to be delivered before payment of the purchase money, and it was so delivered, after which the vendee was ousted by the vendor: held, he had a right to recover the possession without paying the purchase money. (Bassler v. Neesly, 2 S. & R. 355.) And the vendee may maintain ejectment in such case, though the contract is silent about the possession, where he went into possession with the consent of the vendor. (Harris v. Bell, 10 S. & R. 39.) And the vendor in such case is chargeable with the rents and profits for the time he is thus in possession, which may be applied on the unpaid purchase money. (Wykoff v. Wykoff, 8 Watts & Serg. 481; Ives v. Cress, 5 Barr. 188; Hull v. Vaughn, 6 Price’s Ex. 157.) So much is the vendee considered, in contemplation of [618]*618equity, as actually seized of the estate, that he must bear any loss which may happen to the estate between the agreement and the conveyance, and he will be entitled to any benefit which may accrue to it in the interval, because by the contract he is the owner of the premises to every intent and purpose in equity. (Richter v. Selin, 8 S. & R. 440; Paine v. Meller, 6 Vesey, 349; 1 Sugden on Vendors, 330, 338.)
The case of Gaven v. Hagen (15 Cal. 208), however, differs very essentially from the present, in this—that there was no stipulation that the vendee was to have the possession, as in the present case, and it is not therefore in point. It is also objected that the defendant in his answer describes this agreement as a conveyance of the premises, when in fact it was only an agreement to convey. We do not deem that this makes any essential difference, as the instrument is sufficiently described to identify it, and the plaintiff is not injured by a mistaken statement of its legal effect.
The judgment in this case was for the possession of the entire estate, in which respect it is clearly erroneous, for the plaintiff is not entitled under the findings to a judgment for more than the undivided half of the premises, and not even for that, except upon proof of an ouster of the plaintiff by the defendant.
The judgment is reversed and the cause remanded for a new trial.