the opinion of the Court was delivered by
Gordon, J.Both parties to this suit claim to have derived title to the land in controversy from James McCandless, and the one and only material question in the case is, who is the rightful possessor of his title ?
McCandless, on the 23d of November, 1876, by articles of agreement duly executed, covenanted, on payment of the purchase money therein set forth, to convey to C. H. Love, whose title the plaintiff below now owns, the several lots of ground, the right of possession to which forms the subject of the present contention.
This agreement was, on thé next day after its date, assigned by McCandless to S. B. W. Gill. On the same day of this assignment, McCandless executed to Gill a deed for this property in fee, and on the 12th of May, 1877, Gill conveyed to Love. This brief exhibits a good title in Love.
Against this, the defendant sets up the following receipts :
“Received of John McMunuy the sum of four hundred dollars on account of the purchase money of four lots, Nos. 19, 20, 21, and 22, in C. H. Love’s plan of the McCandless farm, in Oak Dale, Allegheny county, Pa., purchased at sheriff’s sale by James E. Eiken.
“ May Ifth, 1876. S. B. W. Gill.”
*65“Keceived, May 11th, 1876, of John McMurray, four hundred and seventy-five dollars in full, balance of the purchase money of the within-mentioned lots.
S. B. W. Gill.”
It is contended that these constitute a sufficient agreement to convey under the statute of frauds. This may be admitted; but at that time Gill had no title, hence even his most formal conveyance could not have transferred to his vendee land that confessedly belonged to another person. But, it is urged, on the authority of Clark v. Martin, 13 Wr., 299, and similar cases, that Gill having afterward acquired title from McCandless, that title inured to the benefit of McMurray.
The principle thus stated is undoubtedly a correct one, but it cannot apply in this case, since the day before the deed was executed to Gill the equitable title vested in Love.
Thus, Gill never had anything but the legal title, and this he held as trustee for Love, the equitable vendee of McCandless. Of this legal title, McMurray, perhaps, might have compelled a conveyance, had he taken the proper steps for that purpose whilst it was still in Gill, but failing so to do, he now stands wholly without right of any kind.
But it is said the agreement between McCandless and Love "was forfeited in consequence of the non-payment of the purchase money at the time fixed by the terms thereof.
In order to understand this proposition properly, we transcribe that part of the contract bearing upon this particular point of the case. It is as follows : “And it is hereby expressly agreed and understood, that in case said C. H. Love fails or neglects to pay said sum of $2,000 on the 1st day of February, 1877, and the balance or remainder of said purchase money of said lots or pieces of ground on or before the 1st day of April, 1877, then and in that case, he, the said C. H. Love, together writh his wife, shall execute and deliver to the said James McCandless, his heirs, executors, and assigns, a quit claim and release, in due form of law. of all their right, title, interest, and claim of, in, and to the lots or pieces of ground herein mentioned and described.”
Here we find Love agreeing that, if he did not meet his payments at the time fixed, he would reconvey to Mc-Candless, his heirs, or assigns. The neglect of payment was not, therefore, per se a forfeiture, and whether or not the quit claim or release should be insisted upon, de*66pended altogether upon the will of McCandless or Gill, to whom he had assigned. But neither of these parties ever attempted to enforce this part of the contract, and all right and power to do so forever passed from Gill when he accepted Love's mortgage for the purchase money and executed to him the deed of May 12, 1877.
Under the circumstances as above stated, McMurray’s possession, whatever it may have been, amounted to nothing, for it was without right, and was not continued long enough to make title by the statute of limitations.
Judgment affirmed.