By the Court,
Cowen, J.Independent of the covenant that the defendant might take possession, there can be no doubt that the plaintiff was entitled to recover. Jackson, ex dem Whitbeck, v. Deyo, 3 Johns. R. 422. I admit he could not, on the case made out, recover the purchase money in an action of covenant; he was in default for not tendering himself to execute a deed on the first of May, and his remedy was gone at law. West v. Emmons, 5 Johns. R. 179. Franchat v. Leach, 5 Cowen, 506, 508. The defendant was without fault, for he could not give the security by bond and mortgage till the plaintiff had first given him a deed. Id. id. The remedy of the plaintiff to collect the money, if he had any, lay in a court of, chancery. But although the plaintiff could not recover in- covenant, the defendant could have no title at law, and would be regarded as a trespasser. Jackson, ex dem. Simmons, v. Chase, 2 Johns. R. 84. Jackson, ex dem. Smith, v. Pierce, id. 221. And see Robinson v. Campbell, 3 Wheat. 218., These cases and many others hold that though the defendant’s equitable title may be clear and perfect, its enforcement belongs exclusively to chancery.
If the defendant have any legal right to hold possession it must be in virtue of the agreement, that he might have possession after paying the $500. That sum he paid and took possession ; and now claims to hold at law absolutely, and indefinitely, because the plaintiff has not complied with a condition, merely technical. The question of notice to-quit does not arise between vendor and vendee. Jackson, ex dem. Shipley, v. Moncrief, 5 Wendell, 26, 29. Beside, it was not sought to be raised on the trial ; and wo must, therefore, take the case as if notice had been given, provided any were necessary. The simple stipulation that the defendant might take possession, is certainly not equivalent in law to a deed, either in fee or for life, or any definite time. At the utmost, it can do no more at law than create a quasi tenancy at will. Taken in its strict import, it is a mere license. The language is, “• he may have full and quiet pas,» *234session,” and it stops there. There is nothing in it which ex vi termini entitles the defendant to hold for a day, after the license is revoked.- So much for the legal effect of the agreement. It is merely executory, and looks for the passing of the legal title to a future day. The defendant pays ‘a small portion less than one-sixth ; takes possession, avows his inability to pay any more, becomes insolvent, assigns his estate, and on a claim that he should restore possession, sets the plaintiff at defiance; and claims (virtually) a fee. If he succeed, he will certainly have the merit of introducing a new head into the system of conveyancing.
If any thing be implied from this kind of covenants, in connection with the legal license to take possession, it can. be nothing more than that the defendant shall hold so long as he continues to keep up all such payments, as may be legally or equitably due. Such I apprehend is the real intention of the parties, when they insert such a license. Without it, the defendant would, we have seen, be a trespasserat law: and as he intends to pay, it is but fair that he should be protected. Such .a provision is not unusual and even a court of law would struggle to give it effect, according to the .real intention, though it might be inaptly expressed. More than that, however, we ought not todo. Whén the defendant declares, as here, that he can not pay, and that the land must probably revert,'there is, it appears to me, an end of all implied understanding that the possession should continue. A court of equity would, after that feel reluctant to .interfere and protect the possession, even on the defendant changing his mind and offering to pay. Of course it would not decree a conveyance without full payment. But for a court of law, which can impose no conditions, and can act only on the legal title, to deny a restoration of possession to the vendor, would result in downright iniquity. The case of Jackson, ex dem. Shipley v. Moncrief, 5 Wendell, 26, comes very near the present. The defendant there held under a contract of purchase, and took possession with the vendor’s consent; but the purchaser had made default in payment. Chief Justice Savage did look into the equitable rights of the parties, and found that the *235defendant had no title, even in this view. But he is very-far from admitting that the consent to take possession would protect the defendant at law, even if the parties had so conducted as to save his equitable right. On the contrary, I understand him to deny that such conduct could, in any view, vary the question in an action of ejectment.
The plaintiff being in fault, the defendant has his remedy at law for damages on the covenant. This is his only relief short of chancery.
I have considered the question as if the plaintiff had been technically in default, for not offering a deed at the day. Nothing of the offer appears in the bill of exceptions ; nor was any objection specifically taken on that account. Had it been, the offer might have been shown, when the defendant must have been adjudged without the least right at law, even to defend himself against an action of covenant. The exception, therefore, which is general against the plaintiff’s right to recover, does not reach the only points raised by the defendant’s counsel, on the motion for a new trial. It is clear, however, that a court of law must run into the wildest injustice, should they decide that a defence in an action of covenant by the vendor should in all cases be an answer to ejectment.
The decision at the circuit was right, and a new trial must be denied.