The authorities hold, beyond any question, that when the purchaser of land has made default in the payment of money, under an executory contract, no notice to quit is necessary, nor any demand of the amount due, or of the possession, or tender of a deed, before bringing an action of ejectment. (Wright v. Moore, 21 Wend. 230. Dolittle v. Eddy, 7 Barb. 74. Candee v. Haywood, 34 id. 352.)
The main question in the present case is, whether the defendant was in default in making the payments upon the contract under which he claimed to hold the premises, to recover the possession of which this action was brought.
I have arrived at the conclusion that the defendant was in default, and hence the action was properly brought, and was maintainable, and the referee erred in dismissing the complaint. By the contract between the parties, the premises were sold for a given sum, a portion of which was paid on the sale, without any agreement as to when the defendant should pay the remainder. The deed was not to be given until the balance was paid. Under such circumstances, I think the legal effect of the contract was to make the balance payable whenever the defendant took possession of the premises. In the absence of any stipulation to the contrary, it certainly would become due when the defendant took possession, and had the benefit of the property. It being then due, any delay was for the defendant’s advantage, and from that time it appears to me that he was in default. Being thus in the wrong, the fact that he remained in possession for a number of years, without tendering the plaintiff the money and demanding a deed, does not exonerate him from his default, or help his case. If it had been for a lesser period—say for one year—it would not aid him, for the reason that it does not excuse the default, or change the principle applicable to such a case. The great length of time which he occupied and remained in possession, so long as it did not ripen into an adverse possession, can not, it seems to me, *168excuse the default for not paying the balance remaining due upon the contract.
If I am correct in these views, then the demand of the money, and the tender of the deed, by the plaintiff, was unnecessary and of no sort of consequence. And as the defendant was in default, the plaintiff could maintain the action, for that reason.
Assuming, however, that a demand was essential, under the facts existing, still I think that the judgment of the referee Was erroneous. The whole matter was before him; the complaint setting forth the agreement under which the defendant claimed to hold the premises, and the defendant claiming, in his answer, equitable relief. It was clear that the defendant had not performed the contract, on his part, and if excused from performance by reason of the plaintiff having demanded too much, the referee could have relieved him by a judgment that a deed be given, upon the payment of the proper amount.
It may also be observed that if the plaintiff demanded too much, no objection was made to the demand, by the defendant, on that ground, hi or did the defendant tender what he claimed.Was due, as he might have done, and as he was bound to do before he was entitled to a deed. The circumstances to which I have adverted should have been considered .by the referee, I think, even if a demand was essential; and his judgment should have been based at least upon the equitable rights of the parties, and should not have been a dismissal of the complaint.
The referee having erred, the judgment must be reversed,- and a new trial granted, with costs to abide the event.
Ingalls, J. concurred.