
    *Jacob Baker v. Lessee of Michael D. Gittings and Others.
    When a person is in possession of land, in pursuance of a contract of purchase, and fails to comply with his part of the agreement, an action of ejectment will lie against him at the suit of the vendor, without a previous notice to quit.
    This is a writ of error, directed to the court of common pleas of Muskingum county.
    The defendant in error prosecuted an action of ejectment in the court of common pleas of Muskingum county against the plaintiff, who, in that case, was made defendant in place of the casual ejector.
    The cause came on for trial in said court of common pleas, at the November term, 1846, and was, by consent, submitted to the court instead of a jury.
    On trial the court found the then defendant guilty, and rendered a judgment accordingly. The defendant below then tendered a bill of exceptions, which was, by the judges of the court, signed and sealed, and made part of the record in the case, and is as follows:
    “ Bo it remembered that on the trial of this cause, in the court of common pleas of Muskingum county, at the November term, A. D. 1846, of said court, the evidence on both sides being closed, and it having been proved that the defendant had entered upon tho lands in dispute, in pursuance of a written contract entered into between the lessor of the plaintiff of the first part, and others of the second part, who had sold, assigned, and transferred all their interest in said contract to the defendant, of which sale and transfer the plaintiff had notice, and that by said contract the .said party of the first part had agreed to sell the said lands to the parties of the second part, and that the defendant claimed to .hold the possession of said premises under said contract, *and that said parties of the second part had broken the covenant in •said contract, by which they were bound to- pay the taxes assessed on said lands, and no proof having been made that the plaintiff had, prior to the service of the declaration in this case, made any •demand of the defendant, or given him any notice of his intention to rescind the said contract, or to resume possession of the said lands, the counsel for the defendant moved the court for a nonsuit, which motion the court overruled, and gave judgment for'the plaintiff. To which opinion of the court the defendant, by his counsel, excepts and prays the court to sign and seal this his bill of exceptions, which is done accordingly.”
    The defendant below sued out from the Supreme Court his writ •of error to the common pleas, and prayed the reversal of the judgment below, assigning for error :
    1. That the declaration and notice in ejectment were not served on the tenant in possession, ten days before the first day of the term, to which said declaration and notice were returned “ served.”
    2. That the court erred in giving judgment for the plaintiff, in the absence of any proof that the plaintiff had, prior to the serv •ice of the declaration in this case, made any demand of the defendant, or given him any notice of his intention to rescind the said contract, or to resume possession of the said land.
    .3. That the said judgment was given in favor of the plaintiff in the court below, when, by the laws of the land, it ought to have been given in favor of the defendant below.
    Goddard, for plaintiff in error.
    C. C. & T. Converse, for defendant.
   Hitchcock, J.

The bill of exceptions in this case does not show the nature of the title upon which the plaintiff below sought to recover. It may be presumed, however, that he *had the legal title, as there was evidence that he had entered into a written contract to sell and convey the premises in controversy to others, and that the defendant below claimed possession as assignee of that contract. The question is, whether taking so much of the evidence as is exhibited to us, and it does not appear that we have all that was offered, the then plaintiff should have been •nonsuited.

The first error assigned is, that the declaration and notice in ■ejectment were not served on the tenant in possession ten days before the first day of the term, to which the declaration and notice were returned “ served.”

The declaration in the case was entitled as of the April term, 1846, and with the notice, was filed on the 5th day of August of the same year. The notice was served on the 25th day of July proceding, as appears from the return, which is sworn to on the 4th day of August. On what day of the month tho August term •of the court commenced, we are not informed. If it was on the •day the return was sworn to, or' on the day the declaration and notice were filed, ten days intervened between the service of the notice and the next succeeding term of the court. But suppose ten days did not intervene, what is the consequence? Section 54 of the practice act, Swan’s Stat. 662, provides “that no plaintiff shall proceed, in ejectment, to recover any lands or tenements against any casual ejector, without ten days’ previous notice being given to the tenant in possession, if any there be.” Now here has been no recovery against the casual ejector; but the tenant in possession, at his own request, was ma'de defendant, and the proceedings against him were delayed until the November term of the court. He has had more than ten days’ notice. Had judgment been rendered against the casual ejector at the August term, without the requisite notice to the tenant in possession, such, judgment would have been erroneous. But such judgment might liavo been rendered at the next succeeding term with propriety, had notice been given to the tenant, prior to the return day of the process. Besides, there *is'nothing to show that any objection was made on this account at the trial, and it is too late-to make it upon writ of error.

It is assigned for error in the second place, that the court gave-judgment for the defendant in error without any proof that said, defendant had, prior to the service of the declaration in this case, made any demand of the plaintiff in error, or given him any notice of his intention to rescind the said contract, or to resume the possession of the lands.

The facts as disclosed in the bill of exceptions are these: The defendant in error entered into a contract with some person or persons, by which he agreed to sell the land in controversy; those persons had assigned their interest to the plaintiff in error, and Jbe claims to hold possession under this contract. He had violated some of the covenants of the contract, in failing to pay the taxes assessed upon the land. Whether by the terms of the contract the vendor had a right to the possession does not appear. But he had had no notice to quit, nor notice that the vendor intended to rescind the contract, except the notice served with the declaration in ejectment.

From anything which appears in the case the tenant in possession had nothing more in the land than amere equitable interest. The vendor had the legal title, and in ejectment the legal title-must prevail. When I speak of legal title, in this connection, I mean the legal right of possession. A vendor, who claims merely by contract, may, by the terms of his contract, have the right of possession' secured to him, and in such case, so long as he complies with that contract, may defend at law. But without such ■right secured by the terms of his contract, he has but a mere equity, of which he can only avail himself in a court of equity.

By the practice in England, and in New York, there are certain cases in which, prior to the commencement of an action of ejectment, the tenant must have notice to quit. Whether this was a principle of the common law or first introduced by statute is perhaps doubtful. It prevails in cases * where the relation of landlord and tenant exists. In such case the tenant enters-having a legal right of possession, and that right continues until put an end to by the landlord. But this relation does not exist between vendor and vendee, where there is no other evidence of right on the part of the vendee than a mere contract of purchase-And it has been frequently decided in Now York, where the necessity of notice to quit is held to, with as much strictness as in England, that as between vendor and vendee no such notice is-necessary. 7 Cow. 747 ; 5 Wend. 26; 1 Wend. 418; 21 Wend. 233.

In this state, however, there is no rule of practice which requires a notice to quit, before the commencement of an ejectment. In the case of Spencer v. Markell, decided in 1826 (2 Ohio, 263), the court say “the doctrine of notice to quit, as it is applied in actions of ejectment, depends on statutory provisions and on rules of court, which have often been changed, and differ materially in different tribunals. The only notice required by the laws of this-state, is a notice of ten days to the tenant in possession, before a plaintiff in ejectment can proceed to judgment against a casual ejector. This notice has been considered as legally given by the service of the declaration, with the common notice attached, ten days before the first day of the term to which it is returned.” I am not aware of any statutory provision or of any rule of court,. changing the law, as hold in this case.

Inasmuch, then, as the defendant in error had the legal title to-the premises in controversy, and the plaintiff nothing but an equity, the court of common pleas did not err in refusing to enter a judgment of nonsuit, and in rendering a judgment for the defendant in error. The judgment of that court is therefore affirmed.  