position that a corporation defectively organized may be treated as a copartnership, and the members held liable as partners; but when it is borne in mind that complainant himself was a member of the corporation in question, and in no sense a third party, and that he is not seeking by this bill to recover for anything which he has been required to pay third parties for or on behalf of said corporation, they have no application. What he seeks to do is to have the corporation converted into a partnership, contrary to the contract of the parties, simply because he and other incorporators failed to perfect, as he says, the corporation. He does not even show that he has been misled, or in any way injured, by the failure to have the certificate of complete organization recorded; neither does he pretend that the omission of any of the incorporators to have the same recorded was willful, or in way designed to injure him or others.

NEGOTIABLE INSTRUMENT CONSIDERATION -PAYABLE AFTER DEATH.-The conclusion reached by the New York Court of Appeals, in Carnwright v. Gray, is of great interest, and in a measure, quite a novelty in the law of negotiable instruments. It is held that under the statutes of New York a promissory note need not express value upon its face, and that a promissory note payable thirty days after the death of the maker is valid. Brown, J., says:

The statute of this State in reference to promissory notes provides as follows, 1 R. S. 768. Section 1. All notes in writing, made and signed by any person, whereby he shall promise to pay to any other person, or his order, or to the order of any other person, or unto the bearer, any sum of money therein mentioned, shall be due and payable, as therein expressed; and shall have the same effect, be negotiable in like manner, as inland bills of exchange, according to the cus tom of merchants. Section 4. The payees and indorsees of every such note payable to them or their order, and the holders of every such note payable to bearer, may maintain actions for the sums of money therein mentioned against the makers and indorsers of the same respectively, in like manner as in cases of inland bills of exchange, and not otherwise. Our statute is a substantial re-enactment of the statute of Anne (3 & 4 Anne, chap. 9), which provided that "all notes signed by a person promising to pay to another his, her or their order or to bearer," should be construed to be by virtue thereof due and payable to any such person to whom the same is made payable, etc. This statute was held by the courts of England to include within its terms a non-negotiable note. Smith v. Kendall, 6 Durnford & East. 123; Burchell v. Slocock, 2 Ld. Raym. 1545; 3 Kent's Com. 77. In the case first cited Lord Kenyon said: "A note may be made payable to 'A.' or bearer, 'A,' or order, or to 'A.' only." Similar de. cisions were made by the courts of this State under our own statute. Downing v. Backinstoes, 3 Caines, 137; President v, Hurtin, 9 Johns. 217; Kimball v. Huntington, 10 Wend. 675; Hall v. Farmer, 5 Den. 484. In Downing v. Backinstoes, a non-negotiable note was declared on as within the statute and the defendant demurred on the ground that the declaration did not allege the transaction and consideration upon which the note was given. The court gave judgment for the plaintiff, saying "the very point was settled in

Green v. Long, April term, 1798, in conformity to the adjudications in Westminister Hall." In President v. Hurtin it was said: "The note set forth is a good promissory note within the statute, though it has not the words 'bearer or order.' This is the established English law, and the same rule is recognized by this court." In Kimball v. Huntington the action was upon a due bill in this form: "Due Kimball & Kenston, three hundred and twenty five dollars, payable on demand." Judge Nelson said: "The instrument is a promissory note within the statute. Neither the acknowledgment of value received or negotiable words are essential to bring it within the statute." See also Carver v. Hayes, 47 Me. 257; Franklin v. March, 6 N. H. 364. No authority is cited in the courts of this State or of England holding that a non-negotiable note is not within the terms of the laws cited, and we are of the opinion that the language of our statute includes a note payable to a person without words of negotiability. The instrument sued upon being therefore a promissory note within the statute of this State, it follows that it imports a consideration. By the express terms of the statute the sum of money therein mentioned is declared to be "due and payable as therein expressed." That it is "due and payable" according to its terms is the legal conclusion which the court must draw from the instrument itself. A valid contract is thus declared to exist and of course a consideration must be implied. Hence "value received" need not appear on the face of the note as those words express only what the law implies. Hatch v. Trages, 11 Ad. & Ell. 702; Hall v. Farmer, 5 Den. 484. The effect of laws which make promissory notes negotiable or which authorize actions of debt upon them though nonnegotiable, is to take them out of the common-law rule which requires that every contract must be shown by the party who sues upon it, to be supported by a consideration, and enables the holder to maintain an action thereon, without alleging or proving a consideration. In other words, a consideration is implied from the character of the instrument. Peasley v. Boatright, 2 Leigh, 195; Hatch v. Trages, supra. The English statute was enacted to settle the controversy that prevailed whether under the customs of merchants promissory notes were negotiable. They were thereby declared to be assignable or indorsable over in the same manner as inland bills of exchange were according to the customs of merchants, and holders were empowered to maintain actions thereon in the same manner as they might do upon any inland bill of exchange made or drawn according to the custom of merchants. Our statute contains similar provisions. Promissory notes and inland bills of exchange were by virtue of these laws put upon an equality. They were made negotiable if they contained words of negotiabilty, but whether negotiable or not and whether they expressed value received or not, it was no longer necessary in actions thereon to aver and prove consideration. Such was and is the rule as to inland bills of exchange: 1 Danl. Neg. Inst. § 161; Raubitschek v. Blank, 80 N. Y. 479; Averett's Adm'r v. Booker, 15 Gratt. 163; Wells v. Brigham, 6 Cush. 6. And the same rule under the statute was made applicable to promissory notes. Townsend v. Derby, 3 Metc. 363; Dean v. Carruth, 108 Mass. 242; Bank of Troy v. Topping, 9 Wend. 277; 13 Id. 557; Chitty Bills (9th Am. ed.) 78-181; Paine v. Noelke, 53 How. Pr. 273; Story Prom. Notes, § 51; 3 Kent. Com. 77, 78; 1 Pars. Cont. (6th ed.) 249; 1 Pars. Bills, 193. The statute does not require a note to express value received upon its face and no definition of such an instrument requires the expression of the fact. The note sued upon, although by its

terms payable after the death of the maker, was a valid instrument. A promissory note defined to be a written engagement by one person to pay absolutely and unconditionally to another person therein named, or to the bearer, a certain sum of money at a specified time, or on demand. Story Prom. Notes, § 1; Coolidge v. Ruggles, 15 Mass. 387. It must contain the positive engagement of the maker to pay at a certain definite time, and the agreement to pay must not depend on any contingency, but be absolute and at all events. Tried by this standard the instrument set out in the complaint was a valid promissory note. The fact that it was payable after the death of the maker did not affect its character. 3 Kent Com. 76.

NOTARIES PUBLIC-POWER TO PUNISH.The Supreme Court of Nebraska, in Courtnay v. Knox, 48 N. W. Rep. 763, hold that notaries public, under section 7, ch. 61, Comp. St., are not authorized to punish by fine or imprisonment, persons guilty of misdemeanor or misbehavior during the taking of depositions, and that in the taking of depositions, notaries public are not exercising judicial functions and do not constitute a law court. Their powers are solely derived from the statute. Cobb, C. J., thus concludes a lengthy opinion:

In Ex parte Mallinkrodt, 20 Mo. 493, it appeared that the petitioner was committed to jail by a notary public of St. Louis county for contempt in not producing certain books and papers in obedience to a subpœna duces tecum issued by the notary to give tes. timony in an action pending in the circuit court of St. Louis. The mittimus set forth that the petitioner admitted having the books and papers in his possession when the subpoena was served, and has since delivered them to one of the defendants to avoid producing them at the taking of his deposition. The notary committed him to jail, there to remain until he should produce them, their materiality being made to appear by the affidavit of the agent of the plaintiff. The court said that the act of February 13, 1847, empowered notaries to take depositions under the act entitled "Depositions," approved January 17, 1845. The fifteenth section of that act authorized the officer to compel the attendance of witnesses, in the same manner and under like penalties as any court of record in this State. The eighth section provides that a witness who shall refuse to give evidence, which may lawfully be required, may be committed to prison by the person authorized to take the deposition. The court held that the power of notaries in taking depositions is strictly statutory. They can do nothing not expressly authorized, and under the circumstances which authorize it. There is no power given to commit a witness for refusing to produce books. Powers in derogation of the rights of the citizen are to be strictly construed. The prisoner was discharged. All the judges concurred. The distinction here made between the taking of the testimony of the witness and requiring him to produce books and papers relating to his business was more distinctly drawn and declared by the Supreme Court of the United States in Kilbourn's Case against the sergeant-at-arms, the speaker, and a select committee of the house of representatives of the forty-fourth congress. Kilbourn, for refusing to

answer certain questions and produce his books and papers relating to his partnership in a real estate pool in the District of Columbia, was, by order of the house of representatives, imprisoned in the common jail 45 days, and until the adjournment of congress. He brought an action against the officers who executed the order and the committee which brought him before the house, and recovered against them $15,000 damages. It was taken on error to the Supreme Court of the United States, which held that, although the house could punish its own members, could decide contested elections, and determine the qualifications of members, could exercise the sole power of impeachment of government officers, and might, where the examination of witnesses was necessary to the accom. plishment of these ends, fine and imprison a contumacious witness; there was not to be found in the constitution of the United States any general power vested in either house of congress to punish for contempt; and Justice Miller said: "Whether the power of punishment in either houses by fine or imprisonment goes beyond this or not, we are sure that no person can be punished for contumacy as a witness before either house unless his testimony is required in a matter into which that house has jurisdiction to inquire, and we feel equally sure that neither of these bodies possess the general power of making inquiry into the private affairs of the citizen," (103 U. S. 190); thus limiting the power of congress to punish for contempt to that specially granted in the constitution, as the power of the notary is limited to the authority of the statute. In Krieger's Case, 7 Mo. App. 367, it was held that "in a proceeding under the habeas corpus act, to bring up a prisoner charged with contempt in refusing to answer interrogatories before a notary public taking depositions, there is no presumption of jurisdiction in favor of the notary, and no adjudication as to the jurisdictional fact which the court regards; and it is the duty of the court to examine whether the commitment is within the meaning and spirit as well as the letter of the law. The law does not confer upon a notary public the arbitrary power to compel a witness to answer all questions, hower incompetent, irrelevant, and inadmissible, which may be asked, and a refusal to answer such is not necessarily a contempt. To entitle a notary to commit for contempt, he must exercise his functions not only formally, but substantially in the manner and under the circumstances contemplated by law. For a flagrant abuse of process the notary is liable, and the attorneys engaged in promoting the proceeding are punishable by disbarment or otherwise." In Floyd county, Ind., Pyle brought his action against Burtt, a notary public, for false imprisonment. In his answer the defendant set up justification, on the ground of his being lawfully employed in taking the plaintiff's deposition as evidence in the circuit court of Clark county; that the plaintiff appeared as a witness, and was sworn, but refused to testify and answer proper questions; that for such contempt the defendant committed him to jail for three hours only. The plaintiff demurred, and the circuit court sustained the demurrer. On appeal to the supreme court, it was held that "the common law did not authorize a notary public to take depositions; such authority is conferred only by statute. As to the manner of taking depositions, the powers of notaries are prescribed and limited by statute. That of this State authorizes them to take depositions, and to compel the attendance of witnesses; but they have no power to punish for contempt the refusal of a witness to answer interrogatories." He has no legal right to inflict either fine or mprisonment as penalties for contempt and disobe

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dience of his authority. The answer is insufficient, and the demurrer was properly sustained. Burtt v. Pyle, 89 Ind. 398. These precedents tend to show that a notary's legal duties have heretofore been regarded as limited to the provisions of the statute; that he borrows no juridical power, in the taking of depositions, from the dignity of his employment or the necessities of his case. No authority has been presented, and none has been found, that in taking depositions he exercises judicial functions and is a court.

CONDITIONAL SALE-CONFLICT OF LAWS.The Supreme Court of Alabama, in Weinstein v. Freyer, 9 South. Rep. 285, hold that where a chattel is sold in Georgia, with reservation of title in the vendor until the purchase money is paid, and then, without the vendor's knowledge, is removed to Alabama and sold to a bona fide purchaser, although the instrument of sale was not recorded, and hence under the law of Georgia the sale was void as to bona fide purchasers, the law of Alabama governs the subsequent sale, and the purchaser thereat acquires no better title than his vendor, the original purchaser, had. Clopton, J., says:

The general rule is that, when the State where a contract is made is also the place of performance, and the situs of the property, the laws of that State become a part of the contract; and the sufficiency of its execution, its validity, interpretation, and legal effect, and the rights of the parties to the cortract, will be governed by the laws of that State wherever its enforcement may be sought. The rule is founded in comity, extended by express or tacit assent, and the force to be given to the laws of one State in another depends "upon its own proper jurisprudence and polity." When the legislation of a State where the suit is brought is positive, its own tribunals must conform thereto. Also "where the nation's customary, unwritten, or common law speaks directly on any subject, it is equally to be obeyed, being of equal obligation with the positive Code. When both are silent, then only can the question properly arise as to which law shall govern." 3 Amer & Eng. Enc. Law, 502 et seq. The application of this principle is essential to prevent injustice and the introduction of insecurity, uncertainty, and confusion in the transactions of business. The direct question involved in this case came before the Supreme Court of New Jersey, in Safe Co. v. Norton, 48 N. J. Law, 410, 7 Atl. Rep. 418. The contract for the sale of the property was made and performed in Pennsylvania. The property was immediately transported to New Jersey, and afterwards sold to a bona fide purchaser. The reservation of title in a conditional sale is, by the law of Pennsylvania, invalid, as against creditors and bona Jide purchasers. The law of New Jersey is the same as in this State. In a suit by the original vendor to recover the property, the purchaser from the conditional vendee set up in defense the law of Pennsylvania. It was held, that his contract of purchase having been made in New Jersey, its legal effect, and the purchaser's rights under it, were determinable by the law of that State, by which law he acquired only such title as his immediate vendor had when the

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property was brought into it, and became subject to its laws. Depue, J., in an able opinion, says: "If the right of a purchaser, under a purchase in this State, to avoid the reserved title in the original vendor on such grounds be conceded, the same right must be extended to creditors buying under a judgment and execution in this State; for by the law of Pennsylvania, creditors and bona fide purchasers are put upon the same footing. Neither on principle hor on considerations of convenience or public policy can such a right be conceded. Under such a condition of the law confusion and uncertainty would be introduced, and the transmission of the title to movable property, the situs of which is in this State would depend, not upon our laws, but upon the laws and public policy of sister States or foreign countries." Our own decisions, so far as they go, are in accord with this doctrine. In Marsh v. Elsworth, 37 Ala. 85, it was held that the lien created by a statute of Mississippi could not be enforced in this State against a purchaser, who here acquired the property in good faith for a valuable consideration, on the principle that liens on personal property given by a statute in one State have no priority of liens subsequently acquired in another State, to which the property is carried. The same principle was asserted in Donald v. Hewitt, 33 Ala. 534, and McCoy v. Odom, 20 Ala. 502. As a general proposition, when a contract is valid and binding by the lex loci contractus, it is valid and binding everywhere. The statute of Georgia affirms the validity of the reservation of title as between the parties whether or not the contract is recorded. By the law of that State, the title was in the original vendors when Franklin brought the property into this State, of which they could not be divested except by their voluntary act, or due process of law. We have found no case, and presume none can be found, where the reservation of title being valid by the law of the place where the parties resided and the property was situated, it was decided that the owner was divested of his title by the removal of the property without his knowledge, and its sale in another State. Edgerly v. Bush, 81 N. Y. 199. When Franklin removed into this State, bringing the piano with him, the property itself, its disposition, and the transfer of title became subject to its laws. By the laws of this State the place of the domicile of the parties, and the situs of the property, the legal effect of a sale, and the rights of the parties thereunder, must be determined. By this law, Franklin could not transfer any other or higher title than that he acquired under his contract with Freyer & Co.-a conditional title. The rule that the validity, interpretation and legal effect of a contract are governed by the lex loci contractus applies only to the determination of the rights and obligations of the parties to the contract. The statute of Georgia does not affix a certain construction and legal effect to the contract, or impair the validity of any stipulation or condition as between the parties. It did not enter into the contract as an element, and did not affect the rights and obligations of the parties in its inception. In Harrison v. Sterry, 5 Cranch, 289, it is said: "But the right of priority forms no part of the contract itself. It is extrinsic, and is rather a personal privilege dependent upon the laws of the place where the property lies, and where the court sits, which is to decide the cause." Under the statute, the reservation of title, if, the contract is in writing, is valid against third persons during the 30 days allowed for recording, and is only rendered invalid by a failure to record it within the specified time. Recording, which is to be done subsequent to the contract, is required

to make the reservation of title complete against third parties. The omission to record operates in the nature of a forfeiture of the reservation of title as to creditors and purchasers. The question is not one of validity and construction, but of notice by registration and priority of right. The failure to record does not divest the original vendor of the title, but debars its assertion against third parties, conferring on them, if creditors, a lien, and if purchasers, a right, prior and superior to the vendor's reservation of title. The statute is founded on the local policy of Georgia, different from the policy of this State. Defendant claims no right of property vested under the laws of Georgia, or any right other than that acquired under the laws of Alabama. To maintain the right of defendant to hold the property against the claim of the original vendors would be to make the disposition and transfer of property here situated dependent upon the statute of a sister State, which contravenes the laws and policy of this State, a statute which may be regarded as remedial in its nature. When the validity and construction of the contract between the parties, their rights and obligations, was determined by the statute of Georgia, that statute had no further force. All questions pertaining to the nature and extent of the remedy are governed by the lex fori. Jones v. Jones, 18 Ala. 248; Lewis v. Bush, 30 Minn. 244, 15 N. W. Rep. 113.

LAND CONTRACTS.

Nature of Vendor's Interest.

The Vendee's Interest.

Nature of Vendee's Interest.

Remedies of the Vendor-Ejectment.
Foreclosure-Parties.
Proceedings at Law.
Tender of Deed.

Strict Foreclosure.

Nature of Vendor's Interest.-In cases of executory contracts for the sale of land, the interest of the vendor is not a mere lien, such as he may retain by contract for the unpaid purchase-money when he executes and delivers a conveyance.1 The vendor retains the legal title, which he holds as security and in trust for the vendee.2 The vendor has no mere lien, depending for its efficacy upon a court of equity, but a substantial security which cannot be taken away from him until the vendee pays the balance of the purchasemoney. This interest is sometimes spoken of

11 Jones on Mort. Sec. 225; Moore v. Anders, 14 Ark. 628.

2 Id; Church v. Smith, 39 Wis. 492; Wells v. Baldwin (Minn.), 10 N. W. Rep. 427; Sparks v. Hess, 15 Cal. 186; Driver v. Hudspeth, 16 Ala. 348; Wells v. Smith, 44 Miss. 296; Pitts v. Parker, Id. 247; Hutton v. Moone, 26 Ark. 282; Hines v. Perkins, 2 Heisk. (Tenn.) 395; Reese v. Burts, 39 Ga. 595; Hamblin v. Folts, 70 Tex. 132, 7 S. W. Rep. 834; Houston First Nat. Bank v. Ackerman, 70 Tex. 315, 8 S. W. Rep. 45; 3 Pom. Eq. Jur. Secs. 105, 368, 1046, 1161, 1260, 1262.

as a vendor's lien. use of terms and not of the interests of the vendor in the premises. And there is a radical difference between the mere vendor's lien, in the case of an executed conveyance of the whole title and in the case of the legal titie retained in the vendor where he executes a contract to convey the title at some future time. In the latter case his security cannot be impaired by any lawful act of the vendee; in the former case it is possible for the entire security to pass, wholly discharged of the vendor's lien, into the hands of a bona fide purchaser or incumbrancer without notice. All liens or claims upon the land, accruing after the execution of the contract are necessarily subject to the rights of the vendor to enforce payment of the balance due him out of the land; as, for instance, liens for labor or materials furnished in the construction of any building on the premises at the request of the vendee (unless otherwise provided by statute); a mortgage or conveyance made by the vendee, or an attachment or judgment against him." And it has been held that a purchaser of a part of the land from the vendee need not be made a defendant in case of a strict foreclosure by vendor. The vendor, however, by the execution of the contract, parts with his interest in the land to such an extent that the vendee will hold it as against a purchaser at execution sale to satisfy a judgment against the vendor, docketed subsequent to the date of the contract.9

But this is an incorrect an accurate expression

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6

The Vendee's Interest.-There is some language in the books and intimations in the opinions of the courts, to the effect that the relation existing between the parties to the contract is that of mortgagor and mortgagee. 10

3 Stevens v. Chadwick, 10 Kan. 406; Smith v. Rowland, 13 Kan. 245; Neel v. Clay, 48 Ala. 252; Hill v. Grigsby, 32 Cal. 55.

43 Pom. Eq. Jur. Secs. 1260, 1261.

5 Seitz v. U. P. Ry. Co., 16 Kan. 133; Cochran v. Wimberly, 44 Mass. 503; Thorpe v. Durbon, 45 Iowa, 192.

6 Sitz v. Deihl, 55 Mo. 17; Harvill v. Lowe, 47 Ga. 214; Carter v. Sims, 2 Heisk. (Tenn.) 116.

7 Headly v. Nash, 69 N. C. 162; Tuck v. Calvert, 33 Md. 209; Roberts v. Francis, 2 Heisk. (Tenn.) 127. 8 Taylor v. Collins, 51 Wis. 123.

9 Taylor v. Eckford, 11 S. & M. (Miss.) 21; Money v. Dorsey, 7 Id. 15; Shinn v. Taylor, 28 Ark. 523.

10 Lingen v. Henderson, 1 Blanch. Ch. 236; Norton v. Harrison, Id. 491; Relfe' v. Relfe, 34 Ala. 504; 2 Warv. on Vends. p. 772, et seq.; Coles v. Withers, 33 Gratt. (Va.) 186; Robinson v. Appleton, 124 Ill. 276;

The first three of these cases are cited in Lewis v. Hawkins, 23 Wall. 119, where the question is somewhat discussed but not decided. And it is believed that the correct rule is that the transaction may be said to possess some of the characteristics of a mortgage, but not to that extent that the parties to the contract and all persons interested in the premises are governed in asserting their rights, by the rules applied by the courts to mortgages and the parties thereto and the subject-matter thereof." Somewhat depends upon the intention of the parties; as, for instance, where the vendor treats the contract as a mortgage and seeks a foreclosure and sale as in foreclosure of mortgages, the vendee is entitled to a stay of sale under the statute providing for a stay in the foreclosure❘ of mortgages.12 In many respects the contract may be treated as a mortgage, but as the legal title to the property remains in the vendor, the remedies available to him are very different from and more summary than those which may be invoked by the mortgagor, as we shall see later on.

Nature of Vendee's Interest.-The vendee holds the equitable and beneficial estate and is usually entitled to the possession; and the vendor holds the legal title in trust for the vendee.13 But some authorities hold that the equitable title does not become vested in the vendee until the purchase-money is fully paid;14 and that the equitable estate becomes vested pro tanto in the vendee just so fast as he pays the purchase-money. The equitable title becomes vested in the vendee by the law of conversion, equity treating that as already done which ought to be done. 16 The vendee's equitable estate may be alienated or devised as real estate, and upon his death it descends to his heirs. He may incumber his

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12

Lewis v. Baskin, 27 Ark. 63; Curtis v. Buckley, Kan. 449; Connor v. Banks, 18 Ala. 42; Sparks v. Hess, 15 Cal. 186.

11 Kirby v. Harrison, 2 Ohio St. 326.

12 Spencer v. Moyer (Neb.), 45 N. W. Rep. 464. 13 Shaw v. Foster, L. R. 5 H. L. 321; Rose v. Watson, 10 H. L. Cas. 672, 678; Wall v. Bright, 1 J. & W. 494, 508; Lysaght v. Edwards, L. R. 2 Ch. D. 499, 506, 507; Vail v. Drexel, 9 Ill. App. 439; Moore v. Burrows, 34 Barb. 173; McKechnie v. Sterling, 48 Barb. 330.

14 Watson v. Le Row, 6 Barb. 481; Rood v. New York & E. Ry. Co., 18 Barb. 80.

15 Jennison v. Leonard, 21 Wall. 302 (L. Ed. 22, 539); Boone v. Chiles, 10 Pet. 117 (L. Ed. 9, 388); Bissell v. Hayward, 96 U. S. 580 (L. Ed. 24, 678).

16 Gunter v. Carroll, 101 U. S. 426 (L. Ed. 25, 985); 1 Pom. Eq. Jur. Secs. 105, 368; 3 Id. Sec. 1161.

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interest and it may be sold upon execution.17 "An execution sale of the vendee's interest should be treated as a sale of incumbered property, subject to the rights of the vendor. The vendee has a lien upon the property for what he pays upon the contract, which he may enforce in case the grantor fail to fulfill on his part. 19 And this lien may be enforced as against a purchaser from the vendor with notice.20

Remedies of the Vendor-Ejectment.-The right of the vendor to maintain ejectment after default on the part of the vendee has been sustained in a number of cases.21 21 In New York no foreclosure of the contract is necessary; the vendor is entitled to immediate possession on default and may maintain ejectment. 22 But it may be safely asserted that ejectment may not be maintained except when time is of the essence of the contract, either made so by the language employed23 or arising from the circumstances surrounding the transaction.24

Foreclosure-Parties.-If living, the vendor should bring the action unless he has conveyed the land; in which case his grantee

17 Smith v. Moore, 26 Ill. 392; Lewis v. Hawkins, 23 Wall. 119; Button v. Schroyer, 5 Wis. 598; Martin v. O'Bannon, 35 Ark. 62; Scroggins v. Hoadley, 56. Ga. 165; Masterson v. Pullen, 62 Ala. 145; Sehorn v. MeWhirter, 8 Baxt. (Tenn.) 201; Richards v. Fisher, 8 W. Va. 55; Merritt v. Judā, 14 Cal. 59; Purley v. Bullard, 41 Cal. 444; Ducks v. Turner, 44 Iowa, 575; Walkenhorst v. Lewis, 24 Kan. 420.

18 Thompson v. Heffner, 11 Bush. (Ky.) 353. 19 3 Pom. Eq. Jur. 1263.

20 Clark v. Jacob, 56 How. Pr. 519; Stewart v. Wood, 63 Mo. 252; Rose v. Watson, 10 H. L. Cas. 672.

21 Wallace v. Maples (Cal.), 21 Pac. Rep. 860; Gregg v. Von Phul, 1 Wall. 274 (L. Ed. 17, 536). In the latter case the possession of the vendee after default was held tortious. Burnett v. Caldwell, 9 Wall. 290 (L. Ed. 19, 712); Rose v. Loyd (Mo.) 11 S. W. Rep. 622; Kerns v. Deans (Cal.) 19 Pac. Rep. 817; s. c., 77 Cal. 555. In the last two cases the vendee was allowed a reasonable time in which to pay the balance due. Miles v. Lewis, (Pa.) 10 Atl. Rep. 123.

22 Canfield v. Westcott, 5 Cow. 270; Wright v. Moore, 21 Wend. 230; Ketchum v. Evertson, 13 Juhn. 359.

23 Peters v. Canfield (Mich.) 42 N. W. Rep. 125; Overman v. Jackson (N. C.) 10 S. E. Rep. 87; Gunst v. Pelham (Tex.) 12 S. W. Rep. 233; Neill v. Peale (Pa.) 4 Atl. Rep. 831; Higby v. Farr, 28 Minn. 439, 10 N. W. Rep. 592; Mickelwait v. Leland, 54 Iowa, 662, 7 N. W. Rep. 107; Judů v. Skidmore (Minn.) 22 N. W. Rep. 183; Sornberger v. Bergren (Neb.), 30 N. W. Rep. 413; Schuman v. Mark (Minn.), 28 N. W. Rep. 927.

24 Gilman v. Smith (Md.) 17 Atl. Rep. 1035, where the purchaser, with the knowledge of the vendor, expended large sums in building upon the premises; Nagel v. Lemmer (N. J.) 16 Atl. Rep. 205; Austin v. Wacks, 30 Minn. 335, 15 N. W. Rep. 409.