
    [Lancaster
    Mat 26,1823.]
    HARRIS against BELL.
    IN ERROR.
    If there are articles of agreement forthe sale of lands, in which no time is stipulated for delivery oi possession, but before the day of payment of tile purchase money, the vendee obtains possession by the consent of the vendor, and the purchase money not being paid, the vendor obtains possession unlawfully, by the act of a third person, the vendee may recover in ejectment without tendering the purchase money or bringing it into court.
    Possession of land is always constructive notice of the actual title of the person in possession.
    Error to the Court of Common Pleas of Lancaster
    
    Ejectment by Mary Ann Barbara Bell, the plaintiff below, against Robert Harris, the defendant below, for a house and lot in Harrisburg, in which a verdict and judgment were rendered for the plaintiff below.
    On the loth January, 1795, the defendant below, Harris, was seised in fee of the property in question, and an article of agreement was executed between him and Harman A. Layer, by which the said Harris agreed to execute a deed on or before the 1st February, 1800, and Layer in consideration thereof, agreed to pay the sum of ¿675; ¿615 thereof, on the 1st February, 1796, and ¿615 yearly, for four years, with interest. From the 13th May, 1796, to the 8th of August, 1800, the sum of ¿§45 15s. Id. were paid on account of the purchase money. Layer died in possession of the premises, and by his will, dated in March, 1801, appointed Peter Bricker and George■ Peffer, his executors, and authorised them or the survivor of them, to sell and convey all his estate. On the 21st March, 1804, an article of agreement was entered into between Peter Bricker, surviving executor of Layer, and Martin Rapp, by which Rapp agreed to purchase the premises for the sum of ¿G 87, payable the 1st April, 1805, on or before which a deed was to be made, and immediate possession was to be delivered. Rapp took possession under this agreement, and held it till his death, in the year 1804. He left the plaintiff his only child, then an infant, aftewards married to John Bell, who, with her, instituted this ejectment, and died whilst it was depending. On the 8th May, 1804, Andrew Krouse took out letters of administration on the estate of Rapp, and on the 29th July, 1818, by an indorsement on the back of the last mentioned agreement, assigned and surrendered the premises to Bricker, stating that he had no assets, and that the property was not worth what was due: Bricker, the next day, by an assignment indorsed, on the back of the first article of agreement above mentioned, assigned the premises to the defendant, Harris, in fee simple, in consideration of the balance of purchase money and interest on the contract.
    
      It was proved on the trial, on the part of the plaintiff, that in August, 1812, prior to the institution of this suit, an offer was made to the defendant by the plaintiff, to pay him what might be due: and the defendant refused to receive it, saying that he would have taken it, if it had been paid when it was due. The plaintiff also admitted on the trial, that no part of the purchase money had ever been paid by Rapp or his representatives to Bricker, or to Harris, under the last mentioned agreement.
    Previous to the trial, the plaintiff filed in the court below, an agreement, signed by her, in the presence of a witness, that in the event of a verdict being rendered for the plaintiff, the court should appoint three referees, to whom the question of the amount of the consideration money yet due to the defendant for the premises, if any, should be submitted; the referees to take the same into consideration, and also the rents received by the defendant : and upon their agreement, or the agreement of any. two, to report the same to the court, and upon the court’s approving the same, the amount, if any, should be paid forthwith by the plaintiff into court; otherwise, judgment to be tutored for the defendant, and that judgment be suspended in the meantime. A verdict was rendered for the plaintiff, on the 30th March, 1821, and on the 24th of the same month, the plaintiff’s attorney, by writing filed, requested the court to appoint referees, in conformity with the above agreement, if the defendant agreed thereto. On the 3d July, 1821, the court, on motion of the plaintiff, entered judgment on the verdict, “ it appearing to the court that the defendant refuses to accede to the proposition made by the plaintiff to appoint referees.”
    The court was requested by the defendant to charge on several points, and the defendant excepted to the charge. Errors being assigned, the court on the argument, suggested that there were but two points in the cause. 1. Whether the plaintiff had a right to recover the possession from Harris, let the title be as it might. 2. Whether Harris had not a right to retain the possession until the money was paid to him, or brought into court.
    For the defendant in error, it was contended,
    1. That the possession being in Layer, and afterwards in Rapp, from whom the right of possession descended to the plaintiff, it was unlawfully gained by the defendant below, under the assignment of Krouse, who had no title, and could convey no right, especially as the plaintiff was then an infant. When the possession is rightfully restored to the plaintiff, the defendant may have his remedy for the purchase money by ejectment or otherwise. 2d. As to the purchase money, it could not be exactly known what was due, because the defendant was liable for the rents and profits, and, therefore, it could not be brought into, court. If a tender j however, were necessary, such tender was proved. In ejectment, the court may do justice and equity between the parties, and impose such terms as may be thought right. Here, the plaintiff agreed to pay what was due, and used every effort in his power to effect a settlement: but the defendant refused to concur. In Basler v. Neisly, 2 Serg. & Rawle, 352, such a stipulation was filed, and received the sanction of this court. In Moody's Lessee v. Vandyke, 4 Binn. 31., it was held, that if the legal title be in A., and an equity in B., which may be satisfied by payment of money or tender, it is not necessary that A. should pay or tender before the institution of the ejectment; it will answer if done at any time upon the trial: and the offer in this case, made on the trial, was equivalent to a tender. So the jury, in an action for obstruction of a water course, may find the value of a meadow in damages, to be released on certain terms being complied with, to which the plaintiff has bound himself by agreement filed. Anon. 4 Dall. 147.
    For the plaintiff in error, it was insisted, that the plaintiff was not entitled to recover, until she paid all the money which her father had agreed to pay Bricker; because Bricker conveyed to the defendant having first received a surrender from Krouse, the administrator of Rapp. Of this money nothing had been paid by the plaintiff below, or her father.
    
      Harris and Douglas, for the plaintiff in error.
    
      Ellmaker and Elder, for the defendant in error.
   The opinion of the court was delivered oy

Duncan, J.

The plaintiff in error has assigned several reasons for the reversal of this judgment, yet the whole may be compressed within one narrow proposition: was the defendant in error, or the plaintiff below, bound to tender to the’plaintiff in error, the amount of purchase money due on the articles between her father, Martin Rapp, and Peter Bricker, the surviving executor of Harman A. Layer, before bringing the action and since it was in court, on the trial ? For it is certain, that Robert Harris, is entitled to that amount with interest, making reasonable deductions for rents received during the time he was in the possession, after Bricker’s surrender to him.

If this contract had been purely executory, and no possession delivered by Harris to Layer, nor by Bricker to Rapp, then the action of ejectment would have been in the nature of a bill in equity to compel the specific execution of the agreement between Harris- and Layer, and Bricker and Rapp, in which Harris and Bricker must have been made parties; and as Harris had the legal title, and all interest in the agreement between him and Layer, by Bricker’s assignment, subject, however, to the prior equity of Rapp, the sum due to Bricker, as I have already stated, should have been tendered to Harris, and as I think, before the bringing of the action, and been brought into court on the trial. The case of Moody v. Vandyke went on different principles. There the legal title was in the plaintiff, and equity alone in the defendant: the sum uncertain. Here Harris had the legal title, the plaintiff only an equitable title; the sum certain, which Lapp was bound to pay on the 1st April, 1805, before he could demand either title or possession. This would be a condition precedent, without performance, or offer to perform which, the plaintiff could not recover in ejectment. The delivery of possession and payment of the purchase money, were concurrent, and the party who desired to enforce the contract, must always show a performance, or offer to perform his part of the agreement. If Bricker or Harris called for the money, conveyance must have been previously tendered to Rapp or his heirs. So, Rapp, or his heirs, before they could require conveyance and demand possession, must have tendered the purchase money. Harris represents Brick-er, and holding the legal title, is the hand to receive the money, and execute the conveyance. On the articles between Harris and Layer, Harris was not obliged to make the title, until all the purchase money was paid. There is no time fixed for delivery of possession to Layer; but from the nature of the contract, it must be understood, that it was to be delivered before the last payment, which was not demanded until five years after the contract. These payments were to be annual from 1795 to 1800. In 1800, there is evidence that Layer was in possession, and from 1796 to 1800, had paid more than half the purchase money. He died in possession; his executors came into possession, and in 1804, Bricker, the surviving executor, articled to sell to Rapp, who went immediately into possession, and died prior to the 1st April, 1S05, before the purchase money was to be paid. So far as respected the possession payment of purchase money was waived; the condition precedent dispensed with; the contract executed by delivery of possession. This possession descended to the heir of Rapp, the plaintiff in ejectment, and must have been held by the administrator, Krouse, in her right, until the 29th July, 1808, when he surrendered it to Bricker, who, the day after, delivered it to Harris. So far as respected the right of Rapp’s heirs, these surrenders were totally unauthorised, and the heir of Rcipp was of age. Application should have been made to her: she was to judge, whether she would proceed in the contract, or relinquish it. ifrowse’s abandonment on the ground of want of assets, and the inadequacy of the value of the property to discharge the amount of purchase money, could not affect the interest of the heir in the contract, nor lawfully change the possession If she was an infant, as is asserted and not denied, the administrator coming into possession would hold it, quasi guardian; as a trustee; and his surrender would be a breach of trust; and Bricker and Harris’s entry arising from this violation of duty, they would be considerq^ as trustees, and bound to retain the possession in the samo plight/they received it.

Though I entertain no doubt of the fairness of this transaction, yet the policy of the law, without regard to the motives which influence the parties, or weighing, whether, at the time, the act is beneficial or otherwise to the party interested, would place them in the same state they were in, when the possession was delivered, leaving the rights of the parties as they stood, open to discussion. The right of Harris to the purchase money, is unquestionable. In restoring the possession to Rapp’s heir, to which she has a right equally clear,-the right of Harris to the money remains. Ejectment is a possessory action. The right of possession may be in one and the title to the property in another. One having the right of possession, may recover in ejectment against him who has the right of property; for if the plaintiff shows himself to have been in the peaceable possession, and that he was forcibly dispossessed, it will enable him to recover, and. the defendant cannot set up title in bar. Cro. Eliz. 822, 438. Cro. Jac. 437. Cro. Car. 50. Vaugh. 299. 2 Saund. 112. 2 Bl. 199. 6 Johns. 218. 9 Johns. 74. 10 Johns. 333. 11 Johns. 504. So a party entering under the title of A., surrenders it to B., who claims adversely, B. is in quasi tenant, and cannot object to the title of A. 18 Johns. 94.

The possession of Rapp and Rapp’s heir, was a rightful possession, and the plaintiff in error did not obtain it by force; yet he did so illegally, and under the whole circumstances of the case, would be converted into a trustee for Mrs. Bell, and cannot resist her claim to a restoration of the possession. If Harris had made valuable improvements under the eye of the defendant in error, she having knowledge of her right, and acquiesced in them, without any notice, she would be postponed, and never suffered to recover on a contract where the property was rendered, at his expense, of much greater value, where no money had been paid, and which she, by this acquiescence, abandoned as much by her acts as if she had formally and in writing renounced it. Or, if she was an infant, when the surrender was made, and did so acquiesce for years after her coming of age, this would be a confirmation of the surrender. But nothing of this appeal, nor was the court desired, nor did they give an opinion, on a cáse with that aspect.

There is a principle in Basler v. Neisly, 2 Serg. & Rawle, 354, which establishes the right of recovery by a vendee, who had been ousted without a tender of the purchase money. There, it is true, that by the terms of the contract, possession was to be delivered before payment of all the purchase money. But where the vendor puts the vendee in possession before payment of the money, though he was not bound by the agreement so to do, yet having done it, he waives the payment, dispenses with the condition, and if he forcibly regains the possession, or acquires it from the trustee of the vendee, the qua tenant, he is bound to restore it. This preserves the lights of the parties, and does equity on all sides.

There is a dictum of Chief Justice Spencer, in Jackson v. Sulye, 16 Johns. 197, that a forcible entry on the premises, will not estop the defendant from asserting an independent right to retain the possesion. This dictum related to a naked possession. But where a vendor delivers possession to a vendee on a contract, I do not think, that if he had not paid the purchase money, the vendor, entering and dispossessing him by force, because he had not paid, could set up this non-payment as a defence; for the possession was not an intrusion, a wrongful possession, an entry without lawful right; but a rightful possession, acquired by a legal entry; and I do think he would be bound to restore the possession wrongfully taken from the vendee, put him in statu quo, and then proceed against him legally on his rights. When Harris obtained the possession, the agreement had not been abandoned; possession had been held under it, and the possession continued in the heir of Rapp. Rapp’s taking possession was notice to all the world. It is so under the recording acts, and a subsequent purchase, where possession bad accompanied an unrecorded deed, is affected by this possession with notice of a prior deed. Possession is always constructive notice, 18 Johns. 558, and it is notice of the actual interest the tenant has, either as tenant on agreement to purchase, or purchase completed.

On this general view of the subject, without going into detail on each minute item assigned as error, but considering the charge as one whole opinion, on a series of propositions, without splitting it into particles, and taking it up piece-meal, I am of opinion there is no error in it, and that judgment be affirmed.

Judgment affirmed.  