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Knox et al. v. Spratt and Barnett-Opinion of Court.

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make an iniquitous use of the legal title to oust the tenant of the purchaser; that the purchaser has the equitable right to an investiture of the legal title in him as against the plaintiffs in these actions, and that such title can be acquired in the manner suggested by the facts and stated in thie prayer of the bill. Whether specific performance can be decreed is the question therefore which determines the propriety of the injunction in this case.

The possession of Barnett, the tenant of the vendee Spratt, is for the purpose of this proceeding to be treated as the possession of Spratt, (although Spratt, the landlord, does not appear to be a party to the ejectment suits,) Practice Rules, 85; 3 Wait's Actions at Law, 82 to 86, and we therefore inquire what is the nature of this possession. The bill states that Spratt was the highest bidder at a sale had in March, A. D. 1880, of this lot, his bid being $15,500; that the terms of sale were cash, or at the option of the purchaser, one-fourth cash and the balance in equal installments at six, twelve and eighteen months; that at the sale the vendor company announced that there was some defect in the chain of title which would be removed within thirty days; that said company would make a good and sufficient title to said lot to the purchaser; that the purchaser must make a payment down of $500; that he would at once be let into the possession, and that the balance was to be paid by him when the title was made; that the purchaser, Spratt, announced the wish to pay cash, and that after paying the $500 he was let into the possession of so much of the premises as is the subject of the ejectment suits against his tenant, Barnett. The purchaser thus in possession affirms that he has at all times been willing to pay the balance due upon the acquisition of a good title, or upon the performance by the vendor of his contract to make such title to him. The time for the payments as stipulated has

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Knox et al: v. Spratt and Barnett-Opinion of Court.

now passed, and the contract is off unless it can be performed by Knox, as Spratt declines to take such title as the vendor can give independent of this proceeding in equity. It is well settled that the stipulation here that the purchaser might take possession is not equivalent in law to a deed either in fee or for life, or for any definite time. It is merely executory, and looks to the passing of the legal title at a future time. Cowen, J., in Wright vs. Moore, 21 Wend., 234, says of such a possession : "At the utmost it can do no more at law than create a quasi tenantcy at will. Taken in its strict import it is a mere license." Price vs. Tuttle, 48 Barb., 153. Without the agreement as to possession the purchaser would be a trespasser. Neither he 11or his tenant would be liable in an action of assumpsit for use and occupation anterior to the time at which “the contract went off,” because during that time he is in possession lawfully as purchaser, not as tenant, or in any way from which an implied or express contract to pay for use and occupation would arise. Little vs. Pearson, 7 Pick., 301; I Chitty on Contracts, II American Edition, 453; Sugden on Vendors, 179, 180, 8 Am. Ed.; Dwight vs. Cutler, 3 Viich., 567. Lord Denman, C. J., in Winterbottom et al. vs. Ingham, 7 Ad. & Ell. N. S., a case where the vendee of an estate sold by auction had been suffered to enter upon and hold the premises while the title was under investigation, and the contract had afterwards been determined by want of title, says: “The defendant certainly was considered, both by himself and the plaintiff, as purchaser not as tenant, and the plaintiff cannot convert him into an occupier liable to pay for his occupation by his own wrongful act in not completing the contract of sale." In such a case when a contract is off by the fact that the vendor cannot make a title and other facts necessary to the termination of the contract, the vendor may maintain ejectment against Knox et al. v. Spratt and Barnett-Opinion of Court.

the purchaser. For whatever may be the relation of the purchaser in reference to his title as to strangers as between vendor and vendee, he or his tenant holds in subordination 10 the title of the vendor. This title he cannot deny in the action at law. While discussing this subject it may be well to refer to the allegation in the bill that a suit for use and occupation by the vendor here against Barnett, who was in as tenant of the purchaser, was unsuccessful. That case is reported in 18 Fla., 594. It is a matter of which we have actual judicial notice. The question of the right of possession as between vendor and purchaser was not there discussed. We expressly state in the opinion there rendered that we say nothing of it. Our conclusion was based upon a peculiar state of facts existing between the company and Barnett, by which we thought that the company was estopped from urging the claim for the rent there demanded.

This is the existing status as to the title proposed to be asserted in the action of ejectment by the commissioner, so far as it appears from the allegations of the bill. What is the relation of the plaintiffs in this bill to Deans, the administrator of Foreman, the plaintiff, in the action of ejectinent brought by him against the purchaser's tenant ? The allegations of the bill upon this subject are as follows: In paragraph number two (2) of the bill plaintiffs allege that the company, Spratt's vendor, were in possession of lot number 8, claiming a fee simple title therein derived "by a chain of conveyances mesne and immediate, resting upon a deed executed on the — day of — by one John P. Sanderson, as the administrator de bonis non of the estate of said Jacob Foreman, in execution of an order of sale, and a sale theretofore made by one Elizabeth Foreman, then deceased, and predecessor in office as administratrix of said estate, and the probate proceedings upon which said sale Knox et al. v. Spratt and Barnett-Opinion of Court.

was based. Said deed of said Sanderson purported to divest the title to said lot out of the estate of said Jacob Foreman, in whom the title had heretofore resided.” In paragraph number six (6) of the bill plaintiffs aver “that it appears from an investigation of the proceedings in the Probate Court of Duval county upon which the said Sanderson, as administrator de bonis non of Jacob Foreman, deceased, claimed the authority to execute, and did execute the said deed of conveyance, and which purported to convey said lot and the title thereto out of said Foreman's estate, did not embrace said lot number 8, and did not authorize said conveyance, and the legal title remained in said cstate notwithstanding said sale." The allegation of the will is, therefore, that at the date of the contract to sell by the company to Spratt, the title was in the estate of Foreinan, and this is the ground upon which Spratt, the purchaser in possession, is unwilling to take such title as the vendor can make. Unquestionably his contract was for a good title, and if he insists upon it a court of equity will decree performance if the vendor is in a condition to pei form. If, however, it is apparent upon the case made by the bill that the vendor has no good title and that the court cannot control him to do acts by which he can acquire it ur by which he can place himself in a position to perform his contract, the court will not decree him to perform an impossibility. If the bill disclosed the fact that the vencior or its successor in title, and obligation, was in a situation to obtain a title was in such relation of contract to the title that it was only necessary for him to act and could act, and that he was neglecting to do an act clearly within his power by which he might perfect it, a court of cquity, we think, would control him to the performance of this act, and the performance of this contract. We do not mean by this that it would require him to purchase an out

Knox et al. v. Spratt and Barnett-Opinion of Court.

standing title. What we say is in view of the prayer of of this bill and in view of the facts in this case. If the rendor here occupies such relation to the proceedings in the Probate Court, by which the court at the instance of this administrator exposed this lot to sale and has received a bid therefor, as entitles him to a deed for the lot, then the court would compel him to apply for such deed and thus perfect his title. In order to save misapprehension we here state that it must not be inferred from what we lave or do say that a court of equity would decree as against a purchaser even after confirmation specific performance of a contract of sale made by the County Court. See Andrews vs. Scotton, 2 Bland's Chy., 650; Attorneygeneral vs. Day, i Ves. Sr., 222.

In this view we examine the allegations of the bill. The claim of the plaintiffs is that by virtue of certain proceeding looking to the sale of this lot had by Deans, the administrator of Foreman since the contract of sale between the company and Spratt, and by virtue of relations existing between the company's vendor and the purchasers at said sale and the heirs, and in view of the relief prayed in a cause now pending in chancery between the heirs of Foreinan and Deans, the administrator seeking a settlement of his administration, the court may retain this case and upon the rendition of a certain decree in this pending suit by which the vendor will acquire title, may decree performance.

The foundation of this claim arises out of the proceedings in the Probate Court at the suit of Deans, the administrator, looking to the sale of the lot, the title to which occasions this suit. As shown by the record of these proceedings, which is an exhibit to the bill, the administrator filed a petition seeking to sell this lot to pay a debt alleged to be due Augustus E. Bass and Jacob (we presume it

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