To maintain ejectment, the plaintiff must establish that he is the owner of the premises in question and lawfully entitled to the immediate possession of the same, and that the defendant was in fact, at the time of the commencement of the action, in actual possession of said premises and unlawfully and wrongfully withholds such possession from the. plaintiff.
*166All these facts were clearly proved at the trial, and were undisputed except the last. Ejectment is purely a legal action. It is brought to assert and establish a legal title to land, and the right of possession essential to sustain the action must be such as follows the legal title. The plaintiff in this case having the clear legal title had also the right of possession, although the defendant entered under an executory contract for the purchase by him of the land. Such contract conveyed no title, and conferred no right of possession which could be set up at law against the plaintiff. An entry, however, under such contract, was an entry by leave and a license which, while it remained unrevoked, protected such possession as against an action of ejectment. The plaintiff could not eject his own vendee who had entered by license or under an express agreement giving him such possession, until such license was rescinded or such agreement broken on the part of the defendant. On the 1st of April, 1867, the contract of sale and purchase was to be performed by both parties. The plaintiff was to convey the premises and the defendant to pay the purchase money on that day. Neither party was bound to perform the first act. They were to perform their respective parts simultaneously. Neither party performed or offered to perform on that day, except that the plaintiff let the defendant into possession. But performance was clearly waived on that day, and the time extended till the 4th of April. On that day the plaintiff off'erd to perform on his part, and tendered a deed for that purpose, but the defendant did not pay the purchase money or offer to do so, but refused to receive such deed.
At this point of time the plaintiff, by his offer to perform, had and did put the defendant in default. The legal consequence of such default was that it revoked the defendant’s license to occupy the premises and made his occupation thereafter wrongful.
*167The proofs clearly show that the plaintiff, on said 4th day of April, tendered a deed in apparent conformity to the contract, and that the defendant refused to receive the same, without assigning any reason, and did not present any other deed himself or demand any other form of deed; nor did he produce or tender the purchase money, or any part of it, or in any other way offer, then and there, to perform such contract on his part.
Upon these facts the plaintiff, upon the defendant’s default acquired, then and there an immediate right of action to recover possession at law, and this right of action was in no way released, divested or discharged before the commencement of this suit. The defendant, thereafter, clearly had no legal defense to the plaintiff's action of ejectment. His license to enter was revoked, and he was not entitled to notice to quit.
It is well settled that ejectment maybe brought by a vendor of land against his vendee, in possession under a contract or purchase, and that such vendee is not entitled to 'notice to quit, or demand of possession, if he is in default in making any of the payments or in performing any of the conditions or covenants specified in the contract of sale. (Jackson v. Moncrief, 5 Wend. 26. Same v. Miller, 7 Cowen, 747. Wright v. Moore, 21 Wend. 230. Powers v. Ingraham, 3 Barb. 576.) It follows, from these views, that the defendant’s motion for a nonsuit, at the close of the plaintiff’s case, was properly denied. As the case then stood, the plaintiff had clearly shown that the defendant was in default in not performing the contract, and also that he had expressly repudiated the same by declaring at the time of such tender of performance by the plaintiff that “he had made up his mind that he could not have the farm nor any thing to do with it.”
The case contains various requests to charge, and exceptions to the refusal of the judge to charge as requested and to the charge as made. These requests and the views *168expressed in what purports to be a charge of the circuit ' judge, indicate the points discussed and considered at the circuit, but otherwise they do not present or raise any question for our decision, for the jury were directed by the judge to render a verdict for the plaintiff, and I should presume did so on the spot and without retiring from the box, or considering the facts of the case upon their own responsibility.
The case states that the counsel of the defendant did in due time and form except to that part of this charge wherein the court charged and directed said jury to find a verdict for the plaintiff. This is a valid exception, and presents the question whether a verdict for the plaintiff* was properly directed by the circuit judge upon the case as it stood. Such direction was clearly erroneous if the case should have been given to the jury upon any of the propositions or requests made by the defendant’s counsel.
■ The requests and propositions so submitted all proceed, I think, upon an erroneous assumption in respect to the law of the case, and were all properly denied. The requests ask the judge to charge and instruct the jury that if the defendant, on the first of April and afterwards, was always ready and willing to pay the amount required by the cpntract, upon receiving the deed as required by the contract, then the defendant was entitled to a verdict. By the terms of the contract the plaintiff was to convey the land subject to the payment of two mortgages, one held by one Adams, on which there was due $1300 and some interest, and one held by John Weeks for $500. The defendant was to assume and pay these mortgages, and also pay' to the plaintiff $5200. Subject to these mortgages the plaintiff* was to execute and deliver to the defendant a good and sufficient warranty deed for, conveying . said premises free from all incumbrance. The defendant proved that there was also an incumbrance on said premises of $3000 to one Munson. As this mortgage was a *169subsisting incumbrance on the premises when the plaintiff tendered a deed and offered to perform said contract, the defendant’s counsel insisted at the trial, and such is the argument here, that the defendant was not bound to receive said deed, and was not in default until the plaintiff paid off said Munson mortgage and tendered him a deed in conformity with the contract, which would give him a clear unincumbered title to the land, subject only to the two mortgages mentioned in the contract. • And such undoubtedly would have been the rule if the defendant had not taken possession of the land and this action were upon the contract to enforce it at law as an executory contract. In süch case a party suing must show a strict performance, or a tender of performance on his part.
But this is not an action upon the contract, but ejectment to recover possession of the land, and the defendant can only defend his possession by showing a performance on his part, or that he is not in default.
Both parties are actors, and when the plaintiff tenders a performance under the contract the defendant could not remain merely passive and retain his possession. If he was not content to take the title offered, he should, as Judge Comstock says, in Viele v. The Troy and Boston R. R., (20 N. Y. Rep. 187,) “have specified his objection and given up the possession of the land.” Or, if he did not wish to give up the possession of the land, and notwithstanding the incumbrance of the Munson mortgage proposed to affirm the contract and insist on its execution he should, on the said 4th day of April, when the plaintiff tendered him a deed and demanded his money, have tendered all the money, except a sum sufficient to discharge the said Munson mortgage, and specified his objections to the deed if he had any otherwise!
The purchase money Was $5200, and the Munson mortgage $3000; so the defendant Was bound, on the first of April, to pay the plaintiff $2200 over and above this Mun-*170son mortgage. And when the plaintiff tendered him a deed on the 4th of April he should have tendered this sum of $2200, and demanded a deed, retaining the $3000 in his hands till the Munson mortgage was discharged. Instead of this he proposed to keep, and did keep, both the money and the land. The mistake in the requests and argument of the defendant’s counsel, at the circuit and here, is that the defendant was not bound to act at all, but might remain passive and continue in possession of the land until the plaintiff performed the contract to the letter. The defendant was clearly in default on and after the 4th of April. He did not perform on that day, or offer to perform. Consequently his license to enter into possession under the contract was in effect legally revoked, and he was in possession without right, and the plaintiff was entitled immediately to bring ejectment.
[Monroe General Term, December 7, 1868.It follows that none of the requests made to the circuit judge presented views of the law of the case which it was his duty to submit to the jury, and that his direction to the jury to find for the plaintiff was entirely correct upon the whole "case. It doubtless is true, upon the whole evidence in the case, that neither party fulfilled the contract in such manner and form and time as to entitle him to maintain upon it an action at law. The remedies of both parties were in equity, so far as related to the affirmation and enforcement of the contract, and the party asking equitable relief would be bound to do equity. •
The motion for a new trial should therefore be denied.
D. Darwin Smith, Johnson and J. O. Smith, Justices.]