
    The Proprietors of Township No. Six versus James M’Farland.
    Where one had a bond from the owners of land, conditioned to make him a conveyance thereof on his payment of a sum of money, for which he had given them his promissory note payable on demand, and to permit him to take the profits until such conveyance; and he was in the actual possession thereof taking the profits; it was holden that he had not such an estate in the premises as that a writ of entry could be maintained against him.
    * This was a writ of entry sur disseizin, to which the [*325] tenant, at the return term in court below, pleaded in abatement that he was not tenant of the tenements demanded as of freehold ; and averring that John Peters and Sabin Pond were tenants thereof as of freehold. The demandants, in their replication, averred that the said M’Farland was tenant, &c., taking the rents and profits thereof to his own use, as by their writ is supposed ; and they tendered an issue to the country, which was joined by the said JVPFarland.
    
    
      Under these pleadings the parties agreed to the following statement of facts.
    The said MFarland first entered upon the demanded premises by permission of the said Peters and Pond, and afterwards, on the 29th of October, 1810, received from them a bond, conditioned, that, whereas they had agreed to sell to him a certain messuage [ * 326] and lot or tract of land in Ellsworth, * &c. [describing the demanded premises], and the said McFarland, in consideration thereof, had given two promissory notes payable on demand ; if, after payment of the said notes, and at the request of the said McFarland, they should execute and deliver to him a good and sufficient conveyance with warranty of the demanded premises in fee simple, and should permit him, his heirs, and assigns, peaceably and quietly to receive and take to his and their use the rents and profits of the said premises, and every part thereof, until such conveyance should be made as aforesaid, without any let, suit, molestation, disturbance, or denial of the obligors, their heirs, &c., or any other person by their or any of their means, &c., the said obligation was to be void ; otherwise, to remain in full force.
    The said M’Farland has continued to occupy the demanded premises, agreeably to the said obligation, until the commencement of this suit, and has received the rents and profits thereof during that time, but has no right or claim to the same, excepting under the said bond, and the permission of the said Peters and Pond to occupy, who claim the fee of the same, but have never taken any measures to expel him therefrom, and no money has ever been paid by him to them on the said notes of hand, nor has the same been demanded by them.
    If, upon this statement, the Court should be of opinion that the demandants have a right by-law to support this action against the said M’Farland, his plea in abatement notwithstanding, then judgment was to be rendered that he answer over to the action ; otherwise, the demandants were to become nonsuit.
    
      Mellen and Herbert for the demandants.
    Wilde, for the tenant.
   Per Curiam.

There is no doubt of the sufficiency of the plea ; and the only question submitted to us is, whether the facts stated by the parties will maintain the issue on the part of the demandants, or, in other words, whether M'Farland took any present estate of freehold, under and by virtue of his contract with Peters and Pond. [*327 ] * It cannot be supposed that he took any such estate, unless by force of the clause in the bond, by which he and his heirs and assigns are permitted to receive the rents and profits to his and their own use, until the conveyance shall be made. These words are insufficient for that purpose. If any such estate passed to McFarland, it would defeat the manifest intent of Peters and Pond, who intend to hold the land as security for the purchase-money, and not to complete the conveyance until the price was paid. The expressions in the bond would rather amount to a license to JR’Far-land, or an estate at will, as it was determinable at the will of JR’Farland, namely, by paying the purchase-money and taking a conveyance, and also at the will of Peters and Pond, by their demanding and enforcing such payment.

It is true that JR’Farland was in possession of the premises. But, as he did not acquire that possession by ousting the present demand-ants, they were bound to inquire how he first entered. This would be necessary to enable them to declare rightly, even if he had acquired a freehold estate. It is also necessary, in order to ascertain whether he is liable to their action at all.

If the demandants have not lost their right of entry, they may save themselves this trouble, by making an actual entry on the person whom they find in possession. If then he should abandon the premises to them, they will have attained all the objects of a suit. If he resists and ousts them, they may then maintain their action against him on that ouster and disseizin. If they have a good title to the land, and a right of entry, the person who should thus oust them could not qualify his own wrong, and say that he claimed only an estate for years, or at will. Neither could he justify his entry by claiming under Peters and Pond, if the demandants had the better title to the land.

According to the agreement of the parties, the demandants must be called.

Demandants nonsuit. 
      
      
        Ricard vs. Williams et al., 7 Wheat. 59.
     