
    Cole v. Gill.
    1. Possession under contract oe purchase. Where the obligee, in a bond for the conveyance of real estate, entered into possession, and held over after a judicial sale of the same to satisfy the balance of purchase money due on the contract, it was held that he was not a tenant at will of the holder of the legal title, and that in a legal action he was bound to surrender such possession to such holder without notice.
    2. Tender : judgment. A failure by the obligor in a bond for the conveyance of real estate, to tender a deed to the obligee before commencing an action on the notes for the purchase money, would not vitiate his judgment recovered in such action, nor impair his otherwise valid legal title.
    3. Same: conveys no title. A deed tendered by the obligor in a bond for the conveyance of real estate to the obligee, does not, when it is not accepted, divest such obligor of his legal title.
    4 Purchase money: homestead. A homestead is not exempt from judicial sale for the satisfaction of a judgment for the purchase money: following Christy v. Dyer, ante.
    
    6. Homestead: occupancy. To merely mark out, plat and record a tract of ground as a homestead, is not sufficient to make it such. Its occupancy and use, as ahorne, by the family, are the esssential requirements.
    
      Appeal from Jasper District Court.
    
    Friday, April 10.
    Action op Right. The facts, as agreed upon by the parties, are as follows: In October, 1857, one Nathan Cole was tbe owner in fee of tbe lands in controversy, and sold tbe same to defendant, received about $700 of the purchase money, took two notes for tbe balance, and gave a bond for a deed upon tbe payment of said notes. Natban Cole assigned these notes to plaintiff, who sued upon them, obtained a judgment and execution, and sold thereunder all tbe interest, right and title of tbe defendant in and to tbe said lands.
    Defendant, in February, 1861, and after the sheriff’s sale, conveyed by quit-claim to Samuel Gill, who paid to tbe clerk tbe money to redeem tbe lands from tbe sheriff’s sale, and obtained tbe necessary receipt. Plaintiff received this redemption money, crediting tbe same upon tbe judgment, leaving a portion, however, still unsatisfied. Natban Cole, before tbe institution of this suit, conveyed by quit claim to plaintiff. Defendant was in possession and bad been from tbe time of making the contract. A part of tbe land is claimed by tbe defendant’s wife as a homestead, and she has bad tbe same platted and recorded as such, of which claim plaintiff bad notice at tbe time of tbe sale by tbe sheriff. A deed was executed by plaintiff to defendant, but was never delivered nor accepted. On tbe 3d of January, 1862, plaintiff served defendant with notice, in writing, to quit the premises in three days. This action was commenced February 22, 1862. Judgment for defendant, and plaintiff appeals.
    
      Seevers and Winslow for tbe appellant contended:
    1. That as this is an action at law, the legal title must prevail over tbe equitable title. Page v. Cole, 6 Iowa, 153. 2. Tbe fact that defendant is in possession does not make any difference. Harmon v. Steinman, 9 Iowa, 112. 3. Tbe parties cannot claim a homestead exemption against tbe purchase money. 4. It does not appear that tbe premises were used by the defendant as a home, and this is essential.' Charless & Blow 
      v. Lamberson, 1 Iowa, 435;, Rhodes, Pegram & Oo, v. MbGormadle, 4 Id., 373.
    
      Gasady v. Polk for the appellee.
   Wright, J.

Appellee seeks to sustain the judgment of the court below upon two grounds: First; That defendant is to be treated as á tenant at will of plaintiff, and, as such, had not sufficient or proper notice to quit: Second; That he had the legal title.

Counsel entirely mistakes the relation existing between these parties. Defendant was not the plaintiff’s tenant. The doctrine applicable to a tenancy at will, has, therefore, nothing to do with this case. It is very manifest that defendant entered into possession under the contract of sale, and, in a legal action, he was bound to surrender such possession to the holder of the legal title, without notice.

Who then, in the second place, had the legal title ? It is assumed that defendant had, because, before plaintiff could recover upon the notes, he was bound to execute and tender a deed; that this deed he did tender and bring into court, and thus the title passed. There are two obstacles to this theory. The first is that there was nothing whatever to show that there was a tender of the deed under the circumstances supposed, nor that the deed was ever in court. It is a question of construction, whether plaintiff was or was not bound to tender a deed before suing on the notes. He may or may not have been so. It is very certain that his failure to do so would not vitiate the judgment recovered upon the notes, nor impair his otherwise válid legal title. But, in the second place, it is shown that this deed was never delivered nor accepted. In a legal sense, therefore, it accomplished nothing. The title was not disturbed by its simple execution.

No right is urged in argument under the homestead claim. Nor could there well be, for in the first place the purchase money had not been paid. Christy v. Dyer, ante. And in the second place, it is not shown that the part claimed was at any time used and occupied by the family. To merely mark out, plat and record a tract of ground, as a homestead does not make it such. Occupancy and its use as a home by the family, are the essential requirements.

Defendant might have had his case transferred to the equity side of the court. This he did not do, however, but relied upon the sufficiency of his legal title, and under the agreed state of facts, we are constrained to hold that this is in plaintiff. Harmon v. Steinman, 9 Iowa, 112; Page v. Cole, 6 Id., 153; Farley, Norris & Co. v. Goocher, 11 Id., 570; Abbott v. Chase, 13 Id., 453.

Reversed.  