Hogeboom, J. (dissenting.)
This case, on examination, does not appear so plain for the defendant as it did on the *169argument, although. I still think the judgment was right, and according to law.
The reported cases hold, in stronger terms than I had supposed, that not only is no notice to quit necessary, before maintaining ejectment for non-performance of an executory contract for the purchase of lands, but that where the purchaser has clearly made default in the stipulated payments of the purchase money, no demand of the amount due, or of possession, or tender of a deed, is necessary before bringing ejectment. (Jackson v. Miller, 7 Cowen, 747. Whiteside v. Jackson, 1 Wend. 418. Jackson v. Shipley, 5 id. 26. Wright v. Moore, 21 id. 230. Doolittle v. Eddy, 7 Barb. 74. Stone v. Sprague, 20 id. 509. Powers v. Ingraham, 3 id 576. Candee v. Haywood, 34 352.) I cannot but regard this as unjust, and an exception to the general rule, that where a party goes into possession of property with the consent of the owner, he can not be sued to recover its possession without a specific and distinct demand terminating the lawfulness of his possession.
In the present case, no time for the payment of the purchase money was agreed upon. It is impossible to tell, precisely, what the parties intended in regard to it; although it is evident immediate payment was not expected. It was probably designed to be left very much to the convenience of the defendant, though the evidence is not sufficient to incorporate such a clause in the contract; and the referee has found nothing in regard to it. But as the defendant went into possession of the premises, it may be that the law would infer a present obligation to pay the price.
Be this as it may, it would not, I think, justify a dispossession of the defendant, without a demand of the price, or of the possession. A demand was, I think, necessary, to put the defendant in the wrong. His possession had continued, without interruption or objection on the part of the plaintiff, for nearly twenty years. The plaintiff ought not to be permitted to eject him without at least so much notice as would *170be implied from a demand of possession, or more properly, a demand of the sum remaining due on the contract.
And this demand, if necessary to be made, should he made in the right form, and of the right amount. Possibly a demand in a general form, as of the sum remaining due on the contract, without specifying its amount, would have answered; though on that point I express no positive opinion. ' But the plaintiff chose to make it specific; perhaps he was bound to do so. Making it in that shape, he was bound, I think, to demand the true and not an excessive amount; especially as he made the delivery of the deed conditional upon its payment. The amount thus demanded was excessive—more, by $50, than the defendant was bound to pay. And he could not get his deed without making this payment. The plaintiff was therefore clearly in the wrong in making the demand and irdposing the condition he did, and the defendant was justified in refusing compliance. Ought a justifiable refusal to comply with an illegal demand to subject the defendant to an action of ejectment ?
It is said that he should have tendered the true amount due, and that when the demand was made upon him, instead of preserving silence, he should have offered to make up the deficiency of the purchase money. This would be true, if he was the actor and seeking affirmative relief; but as he has chosen simply to occupy the position of resisting an unjust claim, and an attempted illegal dispossession, it was sufficient, I am inclined to think, to stand upon his rights and to refuse submission to an exorbitant and unfounded claim. The plaintiff in an action of ejectment must recover upon the strength of his own title, and upon the unjustifiableness of the defendant’s possession, or the withholding of the same, and should, I think, place himself in both respects upon impregnable ground, before he is permitted to oust a party of a peaceable possession maintained for nearly twenty years.
It is said that the defendant claimed affirmative relief in his answer, and therefore that the action should have been *171decided as an equitable one, and the defendant adjudged to be entitled to his deed, on terms; and as both parties had been in the wrong, that an equitable disposition of the costs should have been made. But the defendant has not chosen to insist on his title to equitable relief, and we must assume that he abandoned the claim thereto, at the trial, or has chosen to rest satisfied, since, with the judgment actually-given. If he is satisfied to have the case thus disposed of, I do not know that the plaintiff can complain.
[Albany General Term, March 5, 1866.It is said the plaintiff is now remediless, and can neither sue for the deficient purchase money, nor reclaim his land. I do not regard this action as a bar. It is simply in the nature of a nonsuit. Moreover, it was decided expressly upon the ground of an extravagant demand, and not upon the ground that the plaintiff would not have been entitled to relief, if his demand had been of the true amount due. These facts can always be proved, and leave the matter open for a new action.
I think the offered testimony was properly rejected. The defendant had made certain payments apparently applicable upon the contract. This application, sworn by the defendant to have been agreed by the parties to be made, could not be resisted, or prevented by an arbitrary act of the plaintiff in applying the amount elsewhere, and upon general account. The offer should have gone further, and shown an agreement of the parties to apply the money in the mode insisted on by the plaintiff.
On the whole, though the case is not entirely free from difficulty, I am in favor of affirming the judgment of the referee.
New trial granted.
Miller, Ingalls and Hogeboom, Justices.]