The opinion of the court was delivered by
Kedeield, Ch. J.I. It certainly does not appear, by the present bill of exceptions, that the plaintiff offered testimony tending to show that the tenancy of Barney, which was for five years, defeasible upon defendant’s sale of the premises, had in any manner terminated. And we certainly could not presume a substantive fact of such controling importance, against the judgment of the court below. The tenancy must then be regarded as still subsisting and three years of it yet unexpired. In this state of the case, upon the principle of the case of Smith v. Niles, 20 Vt. 315, . we could not regard Barney as having any such perfected interest in the property, as was liable to be levied upon and sold by his creditors. It was at most an inchoate interest, which rested merely in contract, and was to a great extent executory. In contracts of this kind it has often been held of late, that upon general principles, the right of the tenant does not become perfect until his part of the contract is performed. That was so ruled in Chittenden County, at the last term in Briggs v. Bennett, and a number of other cases, depending upon similar principles in conformity with a decision of the Mass. Courts, 24 Pick. A sheriff cannot ordinarily levy upon personal property so situated, that it is impracticable to deliver the thing to the purchaser, at his sale. And it is not claimed, that this case as here stated, and we know nothing else of it, presents such a right, i. e. to deliver the property on sale.
H. It becomes unimportant to consider the general question of the right to sustain account between these parties, which seems certainly difficult, even upon the plaintiff’s theory of his rights acquired by the sheriff’s sale. But as we hold he acquired nothing by that sale, the action must fail of course.
Judgment affirmed.