Upon the pleadings, the case is this : On the 12th of April, 1848, Chunn, the defendant, and one Samuel Fleming entered into written articles for the sale by the former to the latter, *Page 423 in fee, of certain lots in Asheville, on which were situated a store and dwelling house, then occupied by the defendant, at the price of $5.100, payable on the 10th of July following, or at any time thereafter, upon the delivery of possession by the defendant. On the 8th of July, 1848, the defendant gave Fleming notice that he should be ready on the 10th of July, to deliver the possession and convey the premises upon the receipt of the purchase money, and requested him to make the payment, and receive the conveyance accordingly. Fleming did not comply, and the defendant brought an action at law against him for the purchase money. Pending the suit, Fleming died intestate, and it was revived against his administrator, and judgment recovered thereon for the purchase money, and interest thereon from July 10th, 1848, which was paid. — Very soon afterwards, the defendant executed a deed in fee to the present plaintiffs for the premises — they being the children and heirs-at-law of Fleming; and they entered into the premises. The bill alleges, that until he made the deed, the defendant used, and occupied the premises, and that $400 per annum, is a reasonable rent, during that period, and the prayer is for an account and payment of such rent. The answer admits the occupation and enjoyment of the premises by the defendant for part of the time mentioned in the bill, but denies it for the residue of the time, and states that the defendant, having no use for them, both the store and dwelling house were shut up and not occupied by any one, for considerable periods. It insists, also, that the defendant was not bound to give possession until the purchase money was paid, and had the right to the immediate enjoyment of the premises, without liability for rent or profits. As the defendant recovered at law, the purchase money, with interest on it from the 10th of July, 1848, (when, upon payment of the price, Fleming, was by the terms *Page 424 of the contract entitled to the possession,) the property and the profits of it, are to be regarded in equity, as belonging to Fleming, for that time. The profits of the premises came in the place of the interest which constitutes the profits on the price. But the defendant is not liable for rent except for those periods, during which he had the enjoyment. A vendor, who retains the possession and the title, as a security, not merely for the payment, but for the punctual payment, of the purchase money, is not precisely like a mortgagee, who turns the mortgagor out of the premises yielding, or that might yield profits, and enters himself. Such a mortgagee may be justly chargeable with the profits made by him, and also, with such as he might, and, therefore, ought to have made; for he is at liberty to occupy or let the premises, and, unless he means to do so, and apply the profits to the mortgage debt, he ought not to eject the mortgagor. But, a vendor, in a case like this, is under no obligation, and has no authority, but by the direction or request of the vendee, to let the houses, to the possession of which the vendee may entitle himself at any moment, by the payment of the price. Therefore, the defendant, in this case, is liable only for a fair rent for such parts of the premises as he may from time to time have occupied and enjoyed; and he is liable for that upon the principle, that he has derived benefit to that extent out of the equitable estate of his vendee.
But the plaintiffs are not entitled to the whole of that rent; because, that which accrued in Fleming's lifetime, formed part of his personal estate, and went to his administrator. — But they are entitled to that for the term between their father's death, and the conveyance and surrender of the premises to them; and they are entitled to receive it here, because they could not recover it at law, for the want of the legal title at that period. There must, therefore, be a reference to the clerk to enquire for what period the defendant occupied the premises, or any, or what part thereof, or let the same, and to fix a reasonable rent for the same, and, after making the defendant all just allowances for taxes, repairs, and other proper *Page 425 outlays, report the sum which the defendant ought to pay the plaintiffs for the rent or profits of the premises by him made or received.
PER CURIAM. Decree accordingly.