an action for damages for the continuance of a railroad previously constructed therein, under a permit from the city, subject to the rights of adjacent lot owners, although no right to recover damages had been assigned to him by his vendor. Hoffman v. Flint & P. M. R. Co., 114 Mich. 316 (72 N. W. Rep. 167). Where a vendee gave a trust deed to secure the purchase price and a bond in which he obligated himself to erect buildings of a specified value on the land, the measure of damages for the breach of such bond is the difference between the value of the land at the time of the breach with and without the buildings. United Real Estate Co. v. McDonald, 140 Mo. 605 (41 S. W. Rep. 913). Where several vendors have contracted to convey land to a third person they cannot, by contract or conveyance among themselves, release any of their number from the obligation to respond to the vendee for damages arising from a breach of the contract. Seaver v. Hall, 50 Neb. 878 (70 N. W. Rep. 373). A conveyance by a vendee to the assignee of his purchase money note does not create an implied obligation on the part of the grantee to refund a payment made on the note or to make compensation for the improvements because it recites that it is made in payment of the purchase money." Weil v. Flowers, 121 N. C. 133 (28 S. E. Rep. 191). The fact that a vendor procures an attornment from the tenant of an assignee of his vendee occupying under a lease, executed after a default in the contract of purchase which would authorize its forfeiture, does not affect the possessory rights of the lessor, as such an attornment is void. Perkins v. Potts, 52 Neb. 110 (71 N. W. Rep. 1017). As a general rule where the vendor of land in an executory contract wrongfully keeps the vendee out of possession, the latter is entitled to recover damages for the withholding of the premises from him, or for use and occupation for the time he is so kept out of possession; and, if he does recover any such damages, the vendor is entitled to recover interest on the unpaid purchase money for the same time. Abrahamson v. Lamberson, 68 Minn. 454 (71 N. W. Rep. 676). Citing, Bostwick v. Beach, 103 N. Y. 414 (9 N. E. Rep. 41); Covell v. Cole, 16 Mich. 223. Where one agrees with a vendor to protect him in an action to establish his title to certain land and to pay the costs of the same if it goes

66

against him, and to purchase the land at a specified sum if it goes in his favor, the proposed vendor is entitled to sufficient time to exhaust all of his legal remedies, and the fact that the speculative value of the property to the vendee is less before the litigation is finally determined, does not affect the rights of such vendor where he was in no manner responsible for such results. Central Land Co. v. Johnston, 95 Va. 223 (28 S. E. Rep. 175). Applying La. Rev. Civ. Code, arts. 2042, 3301, it is held that the dissolution of a sale by a vendor for the nonpayment of the price, will not affect mortgages created by the purchaser except to subordinate the mortgages to the right of the unpaid vendor to dissolve the sale, hence, if in dissolving the sale the vendor is condemned to restore the value of the improvements on the property, a fund arising from the improvements in excess of the price and revenues to which the vendor is entitled, will be subjected to the mortgage created by the purchaser during his ownership. Succession of Phillips, 49 La. 1019 (22 So. Rep. 202). Wisconsin has a new statute regulating the execution of the conveyance of lands pursuant to a contract held by a deceased person. Laws 1899, p. 9.

Sec. 950. Rights and liabilities of vendor and vendee as to taxes. Where a vendor surrenders possession of the premises sold, and the vendee obtains possession and the use, and the vendor covenants to execute a conveyance or warranty deed, free and clear of all incumbrances, when the purchase moncy is paid or secured, the vendee is liable for the taxes assessed upon such premises after his taking possession under the contract, and he cannot require a covenant in the deed to him against a lien for such taxes. Williamson v. Neeves, 94 Wis. 656 (69 N. W. Rep. 806). Citing, Miller v. Corey, 15 Ia. 1C6; Light v. West, 42 Ia. 138; Meyer v. County of Dubuque, 49 Ia: 195; Spangler v. York Co., 13 Pa. St. 327; Farber v. Purdy, 69 Mo. 601; Manufacturing Co. v. Fenkins, 47 Mo. App. 664; Brown v. Brown, 124 Mo. 85 (27 S. W. Rep. 552); Willard v. Blount, 11 Ired. 624. A vendor voluntarily paying taxes, not delinquent, pending an action by his vendee for rescission, cannot subsequently recover such payment from the vendee who is thereafter adjudged not entitled

to a rescission. Rep. 995).

Garbes v. Roberts, 98 Wis. 173 (73 N. W.

ures.

Sec. 951.

Construction of land contracts-Forfeit

A vendor who has put it out of his power to perform his contract cannot enforce a forfeiture against his vendee. McWhirter v. Crawford, 104 Ia. 550 (72 N. W. Rep. 505). Where the contract provides the manner in which a forfeiture may be asserted, a forfeiture cannot be asserted except in the manner specified. Auxier v. Taylor, 102 Ia. 673 (72 N. W. Rep. 291). Where, after giving his vendee notice of forfeiture, a vendor brings an action to foreclose his vendor's lien, he thereby waives any meditated forfeiture. Old Second Nat. Bank v. Alpena Co. Sav. Bank, 115 Mich. 548 (73 N. W. Rep. 809). Particular contract construed in which the right to enforce a forfeiture for the vendee's failure to make payments was held to be optional with the vendor. Steel v. Long, 104 Ia. 39 (73 N. W. Rep. 470). A provision in a contract that it shall be void as to the vendor if the vendee shall fail to make certain payments at specified times, gives only the vendor the right to insist upon a forfeiture, and performance is not optional with the vendee. Westervelt v. Huiskamp, 101 Ia. 196 (70 N. W. Rep. 125). Where a vendee, who has paid a part of the purchase price, executed his notes for the remainder and entered into possession under a contract which does not make the nonpayment of such notes at maturity or otherwise a ground of forfeiture or rescisson of the contract, his vendor cannot lawfully reenter and take possession of the property on account of his nonpayment of the notes. Usher v. Hollister, 58 Kan. 431 (49 Pac. Rep. 525). Where the vendor in the contract for the sale of real property is required by the terms thereof to give written notice to the vendee of his election to treat the contract as terminated on failure of the vendee to pay at the time specified therein, time being declared to be of the essence of the agreement, such vendor must act with diligence in giving such notice, or he will be deemed to have waived his right to insist that the vendee has lost his rights in equity on account of such breach. Fargusson v. Talcott, 7 N. Dak. 183 (73 N. W. Rep. 207). Although time is made the essence of the contract, when a

vendor has waived his right to a strict performance, he must give such notice of his intention to declare a forfeiture as will give reasonable time and opportunity to the vendee to perform. Mo v. Bettner, 68 Minn. 179 (70 N. W. Rep. 1076). Although time be made of the essence of the contract, yet if the party to whose benefit such provision inures, subsequent to the time when a forfeiture would occur under such provision, by deliberate acts recognizes the contract as still subsisting, such conduct will amount to a waiver of his right to enforce a forfeiture. Shouse v. Doane, 39 Fla. 95 (21 So. Rep. 807). Citing, Dana v. Investment Co., 42 Minn. 194 (44 N. W. Rep. 55); Paulman v. Cheney, 18 Neb. 392 (25 N. W. Rep. 495); Ballard v. Cheney, 19 Neb. 58 (26 N. W. Rep. 587); Cheney v. Libby, 134 U. S. 68 (10 Sup. Ct. Rep. 498). Particular case in which a vendee was held not entitled to relief against a forfeiture of a bond for a deed. Boulder & B. Placer Co. v. Maxwell, 24 Colo. 87 (48 Pac. Rep. 815)

Sec. 952. Construction of land contracts-Particular. cases. Construing an offer to sell "surface rights " of a certain tract of land at so much per acre, it is held that if the term "surface rights "has a definite meaning, it must be a right to a fee in the lands subject to a reservation of the minerals in the grantor; and a tender of a contract providing that the vendor should have the right to enter on the land, explore for ore and carry on the business of mining and for such purposes to take so much of the land, and for such time, as he shall deem expedient, paying the vendee stipulated damages therefor, is not in accordance with the offer. Keweenaw Ass'n v. Friedrichs, 112 Mich. 442 (70 N. W. Rep. 896). For construction of contract between a vendor and vendee as to the right to receive the rent under a gas lease, see Binford v. Thomas, 18 Ind. App. 330 (47 N. E. Rep. 1075). For construction of a particular contract as to liability of the vendor on his guaranty to furnish a tenant for the premises sold, who would pay the specified rent, see McDougald v. Argonaut L. &. Devp. Co., 117 Cal. 87 (48 Pac. Rep. 1021). For construction of particular land contracts as to the rights of the parties thereunder, see Proctor v. Plumer, 112 Mich. 393 (70 N. W. Rep. 1028); Forbes v. Forbes, 112 Mich. 630 (71

N. W. Rep. 171); Auxier v. Taylor, 102 Ia. 673 (72 N. W. Rep. 291); Koshland v. Spring, 116 Cal. 689 (48 Pac. Rep. 58); Hunt v. Stockton Lum. Co. 113 Ala. 387 (21 So. Rep. 454); Brown v. Massey, 138 Mo. 519 (38 S. W. Rep. 939); Heman v. Wade, 140 Mo. 340 (41 S. W .Rep. 740).

Sec. 953. Bond for title. A vendor in a bond for title is not authorized to convey to the widow of his deceased vendee upon her payment of the purchase money notes. Starkey v. Gunn, 64 Ark. 201 (41 S. W. Rep. 419). A purchaser of land in possession under a title bond, is treated as the equitable owner of the land and he may mortgage, sell, or devise his interest in it; and title subsequently acquired by him will pass to his mortgage or vendee. Skaggs v. Kelly,

(42 S. W. Rep. 275).

Tenn.

Sec. 954. Deficiency in quantity and defective title. A vendee cannot rescind a contract on account of a deficiency in the title existing at the time of the sale, where there was no fraud, and the vendor who is solvent, tenders a warranty deed curing the defect. Coleman v. First Nat. Bank, 115 Ala. 307 (22 So. Rep. 84). No cause of action arises in favor of a grantee of land who has been evicted under title paramount, against his vendor who made no covenant or representations as to title and was guilty of no fraud. Baker v. Savidge, 53 Neb. 146 (73 N. W. Rep. 543); Harrison v. Palo Alto Co., 104 Ia. 383 (73 N. W. Rep. 872). When a sale is in gross and not by the acre and there is no fraud, the purchaser takes at his own risk as to the quantity. Skaggs v. Kelly, Tenn. (42 S. W. Rep. 275). Every sale of real estate, where the quantity is referred to in the contract, and where the language of the contract does not plainly indicate that the sale was intended to be a sale in gross, must be presumed to be a sale per acre. While contracts of hazard are not invalid, courts of equity do not regard them with favor. The presumption is against them, and, while such presumption may be repelled, it can only be effectually done by clear and cogent proof. Hull v. Watts, 95 Va. 10 (27 S. E. Rep. 829). One who is induced to purchase and take a quitclaim deed of land from a county, to which it has no title, by the