
    DEEDS — EJECTMENT.
    [Wood (6th) Circuit Court,
    December 19, 1904.]
    Parker, Hull and Haynes, JJ.
    
      Toledo, St. L. & W. Ry. v. Lafayette M. Turney.
    Ejectment will not Lie at Instance of Vendok who has Failed to Make Deed to Vendee.
    A plaintiff in ejectment cannot recover on the weakness of the defendant’s title, but only on the strength of his own; hence one who purchased certain realty from a railway company and took possession, making a part, payment for the same and giving his notes and mortgage for the balance, but who never received a deed therefor from such company and who never paid the notes or any of the taxes cannot be dispossessed in an action of ejectment brought by such company, inasmuch as it never performed its part of the contract.
    [Syllabus approved by the court.]
    Error to Wood common pleas court.
    J. O. Troup, for plaintiff:
    As to the Ballou deed. 2 Beach, Equity Secs. 544-7, pp. 1261-8; Sec. 554, pp. 1261-2; Sec. 555, p. 1264; 2 Pomeroy, Equity Sees. 988-9; 1 Lewin, Trusts 210 et seq.
    
    As to the Shaffer deed. Bishop, Contracts Chap. 55, Secs. 1420, 1433, 1440; Gilbert v. Port, 28 Ohio St. 276; Campbell v. Gittings, 19 Ohio 347; McCoy y. Bixbee, 6 Ohio 310; Dustin v. Newcomer, 8 Ohio 49; Bauda-baugh v. Hart, 61 Ohio St. 73 [55 N. E. Rep. 214; 76 Am. St. Rep. 361]; Cutter y. Powell, Smith L. C. 17; Mowry v. Kirk, 19 Ohio St. 375.
    As to the argument of plaintiff in error. Buchanan y. Boy, 2 Ohio St. 251; Conover y. Porter, 14 Ohio St. 450; Quinlan v. Myers, 29 Obio St. 500; Brown v. Witter, 10 Ohio 142; Katz v. Bedford, 77 Cal. 319 [19 Pac. Rep. 523; 1 L. R. A. 826]; Lake Shore & M. 8. By. v. Bicharás, 152 Ill. 59 [38 N. E. Rep. 773; 30 L. R. A. 33]; Showers y. Emery, 16 Ohio 294'.
    A. W. Eckert and B. F. James, for defendant.
    
      
       Affirmed, without report, Toledo, St. L & W. Ry. v. Turney, 73 Ohio St. 400.
    
   HAYNES, J.

The ease of the Toledo, St. Louis & Western Railway Company against Lafayette 1VL Turney is brought in this court for the purpose .of reversing the judgment of the court of common pleas. The original action was brought by the railway company against Turney for the purpose of ejectment; to dispossess Turney of a certain lot in the village of Grand Rapids, Wood comity. It appears from an examination of the record of the case and from the facts that were stated, that Turney purchased at one time the lot in question from a railway company, that, railway company was afterwards merged in The Toledo, St. Louis & Western Railway Company. The property had been originally deeded to the president of the railway company, Ballou by name, who held it, as trustee, and at the time it was sold by the then company, there was a contract in writing. That contract is not in existence so far as we can learn, the copy that was held by Mr. Turney having been burned at the' time the Chamber of Commerce building in Toledo was destroyed by fire, it being in the possession of Turney’s attorney,■ Mr. Eckert, whose-office and its contents were destroyed by that fire. But the evidence-tends to show that the sale was made upon a contract in writing whereby Turney was to pay a certain sum of money for the lot, two hundred and fifty dollars I think. He was to pay fifty dollars down and the balance in payments of six months and a year apart, to be secured by a mortgage, and the railway company was to execute at the same time a deed of the premises. He paid the fifty dollars down on the execution of the contract. The railway company, sometime afterwards sent him a deed; it was a quitclaim deed, which Turney refused to accept, and returned it. Turney executed at the time he made the payment the note and mortgage that were required, and delivered them to the officers of the-railway company, and they held them and have produced them here in court upon the trial of the ease. Turney testified that he had from time to time written to the railway company demanding that they send him a deed, and he shows a letter written by the general manager of the railway company to him in which he says that the deed has gone forward to be signed by the president and will be returned, but this in fact, was never done. This transaction occurred in the year 1882: Turney testified that he had written to the railway company one or more times that the amount of money that was due had been deposited by him with a merchant in Grand Rapids who was a well-known man, to be kept for the railway company, and they could have it any time they executed the deed. Subsequently however, it appears, he withdrew that money. Turney never paid any taxes or any further part of the purchase money while he stood upon his rights as he claimed, saying that he would do nothing towards paying the amount and paying the taxes, until the deed was executed to him according to the contract. A deed was made by Ballou to the present plaintiff, The Toledo, St. Louis & Western Railway Company, after some time, and it brought this suit. The defendant sets up these various facts in his answer and he claims that he was put into possession by the contract and has held possession of the premises from that time to this, and that the railway company has never performed the obligations on its part to be, performed. He claims his possession is lawful and that the railway company has no right to take' possession of the property against him, because it has failed on its part to perform the agreement to make and deliver to him a good and sufficient warranty deed at the time that the notes and mortgage were made, and at the time the fifty dollars was paid. Around that defense hangs the principal question in the case. The statute (R. S. 5782; Lan. 9319) provides that the defendant may make any defense, legal or equitable, and this is a contest for the possession of this property, the question for the court to determine being whether or not the possession of the defendant was unlawful and whether the plaintiff had the right to dispossess him in an action in ejectment, and after mature consideration we are of the opinion that the contention of-the defendant Turney is right and that this plaintiff had no right to dispossess him for the reason that it had failed on its part to perform the part of the contract that it agreed to perform. The railway company never tendered to him a good and sufficient deed and demanded payment of the purchase money, and without discussing the matter to any great length, and holding this view, we find that the judgment of the court of common pleas was erroneous, and it will be reversed and sent back for further proceedings according to law.

Parker and Hull, JJ., concur.  