Abbott v. Kellogg

Contract to Purchase Land—Possession—Time of Essence—Forfeiture—Tenancy at Will—Notice—Recovery of Possession-Denial of Title or Tenancy—Trespasser.—Where by the terms of a contract to purchase land, under which the purchaser received possession, time was made of the essence of the contract, and it was to be forfeited for nonpayment, and the purchaser was to hold as tenant of the vendor, the purchaser, in such case, becomes a tenant at will of the vendor, who is entitled to thirty days’ notice to quit, if he stands upon his contract rights, before he would be subject to an action of unlawful detainer or ejectment; but where, in either of such actions, he claims equitable ownership under the contract and denies the title of the vendor, or of plaintiff, and denies his own tenancy, the plaintiff may treat him as a trespasser who is not entitled to notice, and may recover the possession.

Id.—Ejectment—Appearance—Waiver of .Objection to Summons.— If the action to recover the possession of the premises be treated as one of ejectment in which the defendant appeared, demurred and answered, without any question as to the time required in the summons so to do, he is not in a position in which he can question the sufficiency of the summons under such circumstances.

Id.—Liability for Use and Occupation—Amount Presumed Correct. While defendant’s entry into possession was lawful, and without liability for rent, as such, under the contract, yet, when the circumstances of the case are such that an action of ejectment will lie, the value of the use and occupation of the premises for the period of possession after the forfeiture was recoverable as damages; and the amount found by the court under the issues presented by the pleadings will be presumed correct, where nothing appears to the contrary.

Id.—Forfeiture of Contract Eights—Law of Case.—It is held that, in view of the decision of the supreme court upon a former appeal, as.to all matters involved in the forfeiture of the conditions of the contract upon the part of the defendant, the rulings of the trial court in accordance therewith will not be reviewed upon this appeal.