
    David S. Hays vs. William Hays.
    Under a written contract, dated'17th January, 1853, to purchase land at a fixed price no time of payment being specified, purchaser entered, and in 1854 or 1855, vendor gave notice to quit — the purchase money being unpaid — and then brought trespass to try title :■ — -Held, that what was reasonable time for payment of the purchase money was a question for the jury ; and that question having been submitted to them their verdict for defendant was not disturbed.
    BEFORE GLOYER, J., AT MARION, EXTRA TERM, APRIL, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbe action was brought to trj tbe title to a tract of land wbicb tbe plaintiff claimed under a deed from Charles J. Fladger, dated 17th January, 1853. On tbe same day that tbe deed was executed tbe plaintiff signed tbe following agreement:
    “‘This agreement witnessetb that William Hays bath bought a tract of land from D. S. Hays for tbe sum of five hundred dollars. When tbe said payment shall well and truly be made, then tbe said D. S. Hays is to make unto tbe said William Hays a good and Iona fide title ; tbe said land containing one hundred and twenty-five acres ; tbe said land known as tbe John Bass land. Given under my band and seal, January 17th, 1853.
    ‘“D. S. HAYS.
    “ ‘ Witness, S. A. Haiegeove.’
    “ At tbe execution of this agreement the defendant went into possession, and still continues in possession. He paid tbe plaintiff thirty-five dollars, wbicb tbe plaintiff said to a witness, wbo heard him acknowledge the payment, was for rent. There was no evidence showing ■ that the defendant held the possession otherwise than under the agreement to purchase. Some time in the year 1854, or perhaps in 1855,.the plaintiff gave a notice to the defendant to quit.
    “ I instructed the jury that if the defendant went into possession under the agreement to purchase he was not a trespasser ; and held that the notice to quit did not change the terms under which he entered, unless the payment of the purchase money had been delayed an unreasonable length of time, and whether it was or not unreasonable was submitted to them.
    
      “ The verdict was for the defendant.”
    Plaintiff appealed and now moved this Court for a new trial on the grounds:
    1. Because the plaintiff having proven a legal title in himself to the locus in quo, and that the defendant went into possession under him, his Honor erred in not charging the jury that after the notice to quit, the defendant was a trespasser, and that it was at least their duty to find the land for the plaintiff.
    2. Because the evidence on the trial established the fact that the defendant was the tenant of the plaintiff, and that he remained in possession of the premises in dispute after notice to quit, given before the commencement of this suit, and his Honor should have charged the jury that the holding of the premises perversely after such notice, was not only not permissive by plaintiff, but such a disclaimer of plaintiff’s title as would entitle him to a verdict for the land, and the arrears of rent by way of damages.
    3. That the agreement to purchase, set up by defendant, having no time specified for its performance, Ms Honor as a matter of law, should have charged the jury that more than a reasonable time had elapsed since its execution and the time of the commencement of the suit in which to comply with its condition, and after having failed to comply with the terms of the contract, he had not even an equitable title to set up in opposition to plaintiff’s legal title.
    
      Evans, for appellant
    cited on the first and second grounds, Hill vs. Robertson, 1 Strob, 1; Galhoun vs. Perrin, 2 Brev. 247; Anderson vs. Darby, 1 N. & Mc.O. 369; Wilson vs’. Weathersbe, Ibid. 373 ; Law vs. Dennis, Harper, 70; Richardson vs. Broughton, 2 N. & McC. 417 ; Chan. Harper’s argument in Williston vs. Wathins, Carolina Law Journal, 113; Jones vs.' Jones, 2 Eich. 542; 2 Blackstone’s Com. 145; 4 Kent’s Com. 112; 1 Cru. Dig. by Grreenleaf, 265; Right vs. Bean, 13 East. 210. On third ground, Anderson vs. Darby, 1 N. & McC. 369; Sinclair vs. Jackson, 8. Cowen, 543; Jackson vs. Pierce, 2 Johns. E. 321; Jackson vs. Ghase, Id. 84; Jackson vs. Lesson, 2 Johns. Ch. 321; Jackson vs. Vanslych, 8 Johns. E. 487; 9 Johns. E. 330 ; 10 Johns. E. 335; 2 Pars, on Con. 47, 143.
    
      Lnglis, contra,
    cited'10 Wend. 304, 539; 3 Hill. 80; 3 Eich. 74; 6 East. 3 ; 4 Eich. 24.
   The opinion of the Court was delivered by

MuNro, J.

The single point in this case, is that presented in the defendant’s third ground of appeal; namely, whether the circuit judge, instead of submitting to the jury the question, as to what would have been a reasonable time within which the purchase money should have been paid — the contract of purchase in this particular being silent — should himself have decided the question, as one of law.

It must be conceded, that on this branch of the law, the authorities are by no means uniform; but it must at the same time be conceded, that the preponderance of authority is manifestly in favor of the ruling on circuit.

But if we look to the real nature of the question to be passed upon, depending as questions of this sort must necessarily depend, upon extrinsic facts, as also to the impracticability, if not to say utter impossibility of laying down any definite or arbitrary rule as a precedent, for all future cases that may arise, in all the variety of forms into which transactions of this sort may be moulded and fashioned; it is a question, which, we think, is eminently proper to be submitted to a jury.

In Muilman vs. D'Eguino, 2 H. Black, 565, it was held that on a bill payable after sight, a reasonable time is allowed the holder to present it for payment, and what was reasonable time was a question for the jury.

And so, too, in Parker vs. Palmer, 4 Barn. & Ald. 387, it was held that a purchaser of goods by sample, if the sample does not correctly represent the goods, may repudiate the contract within a reasonable time to be decided upon by the j™y-

In Smith vs. Doe, 2 B. & Cres. 290, Abbot, C. J., says, in many cases of a general nature, or prevailing custom, the judges may be able to decide the point themselves; in others which may depend upon particular facts and circumstances, the assistance of a jury may be requisite.

This opinion is in strict conformity with what was said by Lord Mansfield, in the case of Tindall vs. Brown, 1 T. R. 168, where in speaking of what is reasonable notice to the indorser of non-payment by the drawer of a note, he goes on to remark: “ What is reasonable notice, is partly a question of law, and partly a question of fact, &c. But whenever a rule can be laid down with respect to this reasonableness, that should be decided by the Court, and adhered to for the sake of uniformity.”

In Wallace vs. Agry, 4 Mason, 345, Story, Justice, says,— What is reasonable time, depends upon the circumstances of each particular case, and no definite rule has as yet been laid down, or indeed can be laid down to govern all cases. The question is a question of fact, for the jury to decide. Such, as I take it, is the doctrine of the authorities.”

To the same effect is our own case of Brock vs. Thompson, 1 Bail, 322; where on a similar point that arose in the case, the ruling of the Court was in conformity with the ruling in the above cases.

The question then having been submitted to the jury, in a form that meets with our entire concurrence, and they having resolved it in favor of the defendant, the verdict must stand, and the motion be dismissed,, which is accordingly ordered.

O’Neall, Whither, and Glover, JJ., concurred.

Motion dismissed.  