A fact stated in the testimony of the defendant himself, not urged in the argument or set out in the reporter’s statement, was sufficient to justify the judgment of the superior court. The witness (the vendee) said that when he proposed to the vendor to surrender the land and pay rent, etc., he asked that he should be allowed payment for the improvements he had put on the land. This, even under the construction he desires to be given to the contract, he had no right to demand. But we do not rest the judgment on this. The right to rescind the contract of sale, and to have the possession redelivered to the vendor, was a condition put in the bond for his own security, as a penalty, so to call it, on the vendee for failing to comply with his contract. It would make the whole contract an unreasonable one to give it any other construction. Tosay that it was intended to give the purchaser the right to vacate the whole sale at his will, by simply failing or refusing to pay the first note when it fell due, and only to pay rent, would be in direct conflict with the terms of the notes. They are made payable to bearer, and on time, and have no condition. Had *508this right — the right to cancel the sale — been reserved to the purchaser, or liad it been the intention of tire parties to have reserved it to him, other terms would have been used in the writings. Because the vendor stipulated that he should have a certain security to ensure the payment of the purchase money, it did not confer on the purchaser the power to vacate the sale and to force the seller to lose all right but the one to demand possession and take the land back. The case of Clark vs. O’Loughlin, in Morris’ Rep. (Iowa,) 375, is analogous to this, and strongly supports our decision. See, also, 6 Ves. Ch. 94; 13 Sim., 206; 1 Colly, 223 ; 11 Paige, 352; 5 Cowen, 270. The terms of the contract as to the forfeiture — the right of the vendor to regain possession — apply to the non-payment of the second note as well as the first. It was for one-half of the purchase money, and was payable one year after the first note matured. If the vendee had paid the first note when due, and had made improvements as he testified he did, could the vendor, on the failure to pay the second note, have claimed, on his part, to set aside the sale and to take possession; or could the vendee, after such default, have tendered the balance and demanded a specific performance? On this question see Edgerton vs. Peckham, 11 Paige, 352, showing how far courts go in applying the rule that time is not of the essence of such contracts. It is not necessary to say here what was the full measure of plaintiff’s right when the vendee failed in making the first paj'inent, or whether that part of the court’s charge as to his right to take the land back, was correct or not. The plaintiff chose to abide the contract of sale and sue on the note. He had this right, and the defendant could not by his default claim a rescisión and defeat the vendor’s whole claim by offering to pay the rent, etc., for the year.
Judgment affirmed.