l. Where a purchaser of real estate fails to comply with the
terms of the contract under which he obtained possession, the
vendor is at liberty to treat the contract as rescinded and to
regain the possession by ejectment. In such case, in the State of
Georgia, and in this country generally, it is not necessary to give
notice to quit before bringing the action.
Page 76 U. S. 291
2. In ejectment brought under such circumstances, an inquiry of
the defendant, when examined as a witness, what he gave for the
property, how much he had paid, in what manner he had paid, and
whether he had paid a valuable consideration is irrelative.
In 1850, one Rogers, being in possession of certain premises for
some years, sold them to persons from whom they passed to the Rome
Female College. And this college executed a somewhat peculiar deed
conveying them to Caldwell. Caldwell, being thus in possession and
claiming title, sold them in January, 1864, to a certain Vliet.
Vliet paid him $4,000 and gave him two promissory notes, each for
$7,000, payable in the course of the year at dates fixed. Caldwell
at the same time executed to Vliet a title bond in the penal sum of
$36,000, reciting the payment of the $4,000 and the delivery of the
notes and conditioned that if Vliet should pay the notes at
maturity and Caldwell should thereupon make to him "a good warranty
title in fee simple" for the premises, the bond should be void. The
bond was silent as to the right of Vliet to occupy the premises,
but Caldwell put him in possession. Vliet transferred the bond and
delivered possession to Burnett. Nothing having been paid on the
notes and more than three years having expired since the maturity
of the one last payable, Caldwell brought ejectment against Burnett
to recover possession of the property. He had given him no notice
to quit.
On the trial, Burnett the defendant being on the stand, his
counsel proposed to ask him what he had given for the property, how
much he had paid and in what manner, and whether he had paid a
valuable consideration. The court, on objection, overruled the
interrogatory.
In addition to this, various questions were made before the
court as to whether Rogers had or had not a valid title by virtue
of the statute of limitations, whether Caldwell had or had not a
perfect paper title, and whether the deed executed by the trustees
of the Rome Female College was valid or not.
Page 76 U. S. 292
The court (Erskine, J.) gave instructions on all those points,
but in addition instructed the jury that
"if a purchaser failed to comply with the terms of a contract
under which he obtained possession, the vendor was at liberty to
treat the contract as rescinded and regain the possession by an
action of ejectment; that in such case neither a demand of
possession nor a notice to quit was necessary; that the ejectment
here was not brought to enforce the contract of sale, but to regain
possession of the land acquired under it."
Verdict and judgment went for the plaintiff, Caldwell, and the
defendant, Burnett, brought the case here.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is a writ of error to the District Court of the United
States for the Northern District of Georgia. The suit was an action
of ejectment, prosecuted by the defendant in error to recover
possession of the premises described in his declaration. The view
which we take of the case renders it unnecessary to consider
several of the exceptions which are found in the record. The facts
as they appear, and which are undisputed, are as follows:
Caldwell was in possession, claiming title. On the 26th of
January, 1864, he sold to Vliet, who paid him $4,000 and executed
to him two promissory notes, each for $7,000, payable,
respectively, on the 1st of April and the 1st of July following,
with interest from date. Caldwell at the same time executed to
Vliet a title bond in the penal sum of
Page 76 U. S. 293
$36,000. It recited the payment of the $4,000 and the execution
of the notes, and was conditioned that if Vliet should pay the
notes at maturity and Caldwell should thereupon make to him "a good
warranty title in fee simple" for the premises, the bond should be
void. The bond was silent as to the right of Vliet to occupy the
premises, but Caldwell put him in possession. Vliet transferred the
bond and delivered possession to Burnett. Nothing having been paid
on the notes and more than three years having expired since the
maturity of the one last payable, Caldwell instituted this suit to
oust Burnett and recover back possession of the property.
The legal principles which must govern the determination of the
case are all well settled. If the contract in such cases be silent
as to possession by the vendee, he is not entitled to it. [
Footnote 1] If the contract stipulates
for possession by the vendee, or the vendor puts him in possession,
he holds as a licensee. The relation of landlord and tenant does
not subsist between the parties. The characteristic feature of that
relation is wanting. The vendee pays nothing for the enjoyment of
the property. The case comes within the category of a license.
[
Footnote 2] In such cases, the
vendee cannot dispute the title of the vendor any more than the
lessee can question the title of his lessor. [
Footnote 3] The assignee of the vendee is as much
bound by the estoppel as the vendee himself. [
Footnote 4] Upon default in payment of any
installment of the purchase money, the possession becomes tortious
and the vendor may at once bring ejectment. [
Footnote 5] Ejectment may sometimes be maintained
when covenant for the purchase money could not. [
Footnote 6]
Page 76 U. S. 294
In England, it is necessary to give notice to quit before
bringing ejectment. [
Footnote
7] In this country, generally the rule is otherwise. [
Footnote 8] In the case before us, the
question must be decided according to the local law of Georgia. The
authorities upon the subject, cited in the brief for the defendant
in error, and especially the manuscript case of
McHan v.
Stansel, decided by the Supreme Court of that state at the
June Term 1869 and not yet reported, establish the proposition that
such notice in this case was not necessary.
The plaintiff's lessor was clearly entitled to recover upon
these grounds. This renders it immaterial whether Rogers had or had
not a valid title by virtue of the statute of limitations, whether
Caldwell had or had not a valid title under the same statute or a
perfect paper title, and whether the deed executed by the trustees
of the Rome Female College was valid or not. Resolving all these
questions in the negative, the right of the plaintiff's lessor to
recover was not affected. The instructions relating to these
subjects may therefore be laid out of view. In any just view of the
subject, they could have worked no injury to the plaintiff in
error.
The testimony offered as to the amount paid by Burnett to Vliet
for the property was irrelevant, and was properly excluded.
In
Marlin v. Willink, [
Footnote 9] where the leading facts were substantially
identical with those upon which the questions before us have
arisen, Judge Duncan said: "This is the plainest case in the
world." Ejectment was held to have been properly brought by the
vendor, and a judgment in his favor was sustained. Whatever relief
the plaintiff in error may be entitled to must be sought in equity.
He can have none at law.
Judgment affirmed.
[
Footnote 1]
Suffern v. Townsend, 9 Johnson 35;
Erwin v.
Olmsted, 7 Cowen 229.
[
Footnote 2]
Co.Litt. 52
b;
Mumford v. Whitney, 15 Wendell
380;
Dolittle v. Eddy, 7 Barbour S.C. 78;
Watkins
v. Holman, 16 Pet. 54;
Blight's
Lessee v. Rochester, 7 Wheat. 535.
[
Footnote 3]
Whiteside v. Jackson, 1 Wendell 418;
Jackson v.
Moncrief, 5
id. 26;
Jackson v. Stewart, 6
Johnson 34;
Hamilton v. Taylor, Little's Select Cases
444.
[
Footnote 4]
Jackson v. Walker, 7 Cowen 637.
[
Footnote 5]
1 Wendell 418; 5
id. 26; 7 Cowen 637, cited
supra.
[
Footnote 6]
Wright v. Moore, 21 Wendell 230.
[
Footnote 7]
Right v. Beard, 13 East 210;
Doe v. Jackson, 1
Barnewall & Cresswell 448.
[
Footnote 8]
7 Cowen 63; 7 Barbour S.C. 74, cited
supra.
[
Footnote 9]
7 Sergeant & Rawle 297.
