The plaintiff (vendee) appeals from a judgment for the defendants on the merits in an action in the Municipal Court to recover $400 paid on account of a contract under seal for the conveyance of realty. The action rests upon non-performance. Heither party offered evidence, but upon the allegations and the admissions of the written pleadings and the admissions at the trial, both presented the facts ..for judgment. It is conceded that the. question of non-performance hangs upon the fact that the defendants were in possession of a part of the premises at the time the parties met to pass the title under their contract. The vendors had agreed to deliver a full covenant and warranty deed of the premises, free and clear of all incumbrances save the mortgages and certain monthly tenancies. *884The vendee under the contract had paid $400 on account, was to pay $4,6.00 in cash at the closing of title, and also was to secure the •consideration' by certain mortgages. The contract did not provide that defendants should be monthly tenants. On the closing day the plaintiff demanded a vacation of the premises by the defendantSj but the defendants answered that they would vacate provided the plaintiff closed the title. The plaintiff thereupon refused to close the title and the negotiation ivas thus ended. After the contract was executed the legal title was in the vendors, who held the premises as trustees for the vendee. (Williams v. Haddock, 145 N. Y. 144; Sample v. Lyons, 59 App. Div. 456.) As the contract did not in terms provide for possession by the vendee, there was no license to him to enter. (Fagan v. Scott, 14 Hun, 162, and authorities cited.) The vendors were entitled to retain possession until the payment of the consideration. (Sugd. Vend., Perkins’ notes, 270, note C, and authorities cited.) The. plaintiff was entitled to a marketable title, but the contract was not broken by the mere fact that on the day of performance there was some incumbrance or lien which the vendors can obviate. (Ziehen v. Smith, 148 N. Y. 558; Higgins v. Eagleton, 155 id. 466. See, too, Karker v. Haverly, 50 Barb. 79, 85.) The sole incumbrance was-a possession only asserted until the title passed, which so far as it appears the vendors could terminate at once, and which they then offered'to terminate forthwith. After the vendee had fully performed on his part, “ it must have been understood * * * that he was to have possession,” and after the vendee “ had paid the full consideration, in reliance upon the promise of the defendant to give him the title to the land, there was an implied consent, on the part of the defendant, that he might take possession as owner.” (Miller v. Ball, 64 N. Y. 293.) The materiality of the alleged defect was a question of fact. (McPherson v. Schade, 149 N. Y. 16.) Even in “the absence of any evidence to the contrary, it could not be infezu’ed that in such a case the vendor intended to retain the use of both the land and the consideration paid therefor.” (Miller v. Ball, supra.) And in this case, as I have said, the defendants stated at the time that they would vacate forthwith when the title was closed. It is true' that they might- have bz-oken their word, but this was but a possibility founded upon no existing fact or statement. Such a possibility did *885not warrant the vendee to withdraw on the ground that the defendants had failed to perform. (Maupin Marketable Titles [2d ed.], 707, and cases cited; Moser v. Cochrane, 107 N. Y. 41; Stevenson v. Polk, 71 Iowa, 278.) It is not to be assumed that the defendants, belying their word and in defiance of all legal right, would persist in a possession which could establish no contract relation,. but which would subject them not only to ejectment but to a response in damages for their unlawful conduct. (Preston v. Hawley, 101 N. Y. 586, 590.) For such a continuance would not in itself constitute him even a tenant at sufferance. (Rowan v. Lytle, 11 Wend. 616.)
. The judgment is affirmed, with costs.
Woodward, Hooker, High and Miller, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.