
    *JEFFERSON COUNTY,
    1831.
    JUDGES — COLLETT, LANE AND WEIGHT.
    MAYNARD’S LESSEE v. CABLE.
    Ejectment — rescission of contract — lawful possession — notice to tenant.
    When parties exchange land and enter into possession under a contract to deed to each other at a particular day, neither can maintain ejectment against the other without notice, and an offer to rescind the contract.
    The bringing an ejectment in such case does not of itself make the possession unlawful or rescind the contract — some step must be taken before suit brought to put an end to defendant’s lawful possession.
    Ejectment. The lessor of the plaintiff, and the defendant, by written contract, dated the 16th February, 1829, agreed to exchange a lot in Annapolis, possessed by Maynard, fot land in Harrison county, possessed by Cable. Each was to take possession on the 1st of April then following, and each to make a deed to the other, in six months. Under this agreement each party became possessed of the property he was to receive, and they each continued in possession when the suit was brought. It appeared that at the expiration of the six months after the date of the contract up to the bringing of suit one or more of the co-heirs of Cable, who were jointly interested in the land, being under age, were incapable of executing deeds to him for their undivided portions, and that of such portions the fee was still in them. No demand of a deed had been made, or notice given of the rescisión of the contract, nor of any offer on the part of Maynard to restore to Cable the possession of the land received from him. A verdict was taken for the plaintiff, subject to the opinion of the court upon the law of the case.
    
      Marsh, Stokely, and Goodenow, for the plaintiff,
    cited 2 O. 263 ; 3 John. 423 ; 2 John. 84.
    
      J. & D. L. Collier, contra,
    cited 10 John. 335.
   BY THE COURT.

The entry of the defendant'was not tortious, but lawful. His covenant to convey is outstanding, and no means have been taken, by restoring the consideration, or otherwise, to rescind or annul the contract. The filing a declaration in ejectment does not, in our opinion, rescind the contract. In this class of cases some steps should be taken to determine the lawful possession of the defendant; some demand or notice should be given to the tenant, before suit is brought, and so are the authorities : 10 John. 335 ; 13 East. 210 ; 9 John. 267 ; 7 T. R. 83.

Nonsuit entered.  