Melick v. Cross. tions of the vendor were not, for several months, accompanied with any demand for a possession of the premises, and that meanwhile the vendor gave the vendee, while remaining in possession, the option of carrying out the contract if he desired to do so; and that the notice to deliver possession was not given until over four months from the expiration of the contract, and the vendee had failed, up to that time, to indicate any intention either to make any further payments on the contract or to abandon it. These facts as to Cross' conduct, taken in connection with Melick's default in the payment of interest and taxes, and (judging from his letter to Cross) his inability to raise money for the payments, except by the sale of lots, leads me to the conclusion that Cross was ready and willing at any time after the termination of the contract to carry out the sale, subject to the easement. I think also that Melick, on his part, and notwithstanding the notice, understood that the sale, subject to the easement, would be carried out whenever he was ready on his part. Cross' declaration of his right to sell to another person, pending Melick's possession, for the purpose of carrying out the contract, did not, under these circumstances, have the effect, either upon his part or that of Melick's, of changing what was in equity the real character of Melick's continued possession, after notice of the defect in title, and after the expiration of the time fixed by the contract. This possession was, on Melick's part, a continuance in possession solely for the purpose of carrying out the contract, and, on Cross' part, a permission of such continuance for this sole purpose. Both vendor and vendee are, in my judgment, now obliged to carry out, and entitled to insist upon, the equitable status which has arisen from the possession of the premises, and their conduct in connection with it, since the discovery of the defect in title and up to the time of filing the bill. The notice of the vendor to deliver possession was not made for over four months, and in view of the failure of the vendee to make any further payments, or substantial offers of payments, was probably the only method of bringing about a decision, by appeal to the courts or otherwise, as to Melick's rights, either at law or in equity, to continue possession. It was apparently accepted as so designed, for the vendee, not acquiescing in the abandonment of the contract, at once Melick v. Cross. filed his bill to protect his continued possession, and for strict specific performance, by conveyance of a clear title, or a return of his deposit, the latter being a demand which had not been made before filing the bill. Inasmuch, therefore, as it fairly appears, on the whole case, that as the vendor, on his part, although claiming that the contract had expired, was willing to waive any claim of expiration or forfeiture, and to carry out the sale, subject to the easement, and inasmuch as the conduct of the vendee in possession has made the easement a matter for compensation, rather than abandonment of the contract, I conclude that, on the vendor's cross-bill, specific performance, with compensation, should be decreed. Upon the question of the right of either party to treat the contract as rescinded or at an end, it should also be observed that in this contract the provisions as to the final payment and the delivery of the deed and securities for purchase-money were mutual and dependent stipulations, and therefore an actual tender and demand by either party was strictly necessary, in order to put the other in a default which would cut off his right to treat the agreement as still subsisting. Pom. Spec. Perf. (2d ed.) § 361. In the absence of such tender on either side, and both parties being strictly in default, the contract remains in force, and either party may afterwards make a proper offer or tender and sue on the contract as a subsisting contract. Ibid. And while a vendee may undoubtedly rescind a contract without tender of performance on his part, where there is a total failure of the vendor's title, he cannot, in my judgment, ordinarily rescind without tender where the defect is partial and may be made the subject of compensation. In the present case neither party tendered himself ready to perform the contract according to its terms at the time fixed, and neither party has the right to proceed in equity on the basis of rescission. The contract must be considered as still subsisting, and the right of either party to a specific performance of the contract will not be affected merely by the failure to make the tender at the time fixed before the suit was commenced. Ibid.; Freeman v. Bissell, 63 N. Y. 168 (1875). At the hearing I was inclined to the view that the matter of Melick v. Cross. compensation would better be adjusted by directing a warranty. deed to be delivered and leaving the compensation to be determined by a jury, if the vendee chose, in an action for breach of warranty. But I find on examination no precedents for this method, and it is contrary to the usual practice in equity, of finally settling all the questions in the suit; and as the question of compensation in equity may, perhaps, embrace other matters than those which would be in an action at law, the compensation should be settled here. The amount of compensation, when fixed in this court, is usually determined by an inquiry before a master, and as I am not now prepared to finally adjust the compensation upon the evidence taken at the hearing, I will hear counsel upon the question of ordering a reference, and at the same time hear them also upon the direction to be given to the master, if a reference is ordered. Counsel may also then give their views upon a question of the right to make a personal decree against the complainant for the payment of any balance of the purchase-money due on the contract. In the assignment of the contract to complainant she did not assume this obligation, but the cross-bill prays decree against Mrs. Melick for payment of the balance of the purchase-money. Her husband, the original purchaser, is not a party to the bill or cross-bill, and although the equitable jurisdiction to make decree against the purchaser for payment of the purchase-money is well settled (Moore v. Baker, 49 Atl. Rep. $36 (Vice-Chancellor Stevens, 1901), and cases cited), the authorities, so far as I have examined them, seem to deny the right to a personal decree against the assignee of the purchaser who has not assumed the payment of the unpaid purchase-money. The question was not argued at the hearing. Williams v. Baker. MARY S. WILLIAMS υ. WILLIAM A. BAKER et al. [Filed February 1st, 1902.] Gen. Stat. p. 2980 ¶ 7, providing that on a sale on execution of any interest in lands the purchaser shall take such estate and interests as the debtor had, refers only to legal estates, and the estate remaining in a grantor after a deed absolute intended as a mortgage, being equitable, a purchaser at execution sale of such estate takes no title, either legal or equitable. On bill for injunction. Mr. William B. Guild, for the complainant. Mr. John J. Hubbell, for the defendants. EMERY, V. C. The general equitable rule upon which jurisdiction in this case is invoked is that of declaring a deed, which was, on its face, an absolute conveyance, to have been merely a mortgage to indemnify the grantee against liabilities assumed by him and another for one of the grantors, and to have the mortgage canceled, because the grantees have been relieved from the liability against which they were secured. At the hearing I decided that the proofs sustained this claim as to the character of the transaction and as to the discharge of the grantees from liability. The parties complainant and defendants are not, however, the original parties to the transaction, but are, or claim to be, purchasers under judgments at law against the respective parties to the deed, the complainant claiming title to the lands in question through a purchaser at execution sale, made on a judgment at law recovered against the grantors, and the defendants being judgment Williams v. Baker. creditors and purchasers of the land at execution sale, on a judg ment recovered by them against the grantee, subsequent to the execution sale on the judgment against the grantors. The purchaser at the execution sale under the judgment against the grantors has conveyed her interest in the land to the complainant, by a deed subsequent to the sheriff's deed made to defendants. The question reserved at the hearing was whether the complainant, by the execution sale under the judgment against the grantee and the conveyance from the purchaser at this sale, acquired any title, legal or equitable, to the grantor's interest in the lands. Under the acts relating to the sale of lands only legal estates or interests in lands can be sold, and equitable estates cannot be levied on or sold under judgment and execution. Gen. Stat. p. 29807; Den v. Steelman, 5 Halst. 229 (1828); Disborough v. Outcalt, Sax. 298, 304 (1831); Van Cleve v. Groves, 3 Gr. Ch. 330 (1843); Belford v. Crane, 1 C. E. Gr. 265, 268 (Chancellor Green, 1863). And while it is settled that the equity of redemption in lands is a legal estate in the mortgagor, where the estate conveyed to the mortgagee is, upon the face of the conveyance, a mortgage only, and this estate or equity of the mortgagor is recognized as a legal estate, subject to sale on execution at law, yet it has also been expressly decided by this court that where an absolute deed has been given, a court of law cannot inquire or determine whether the deed was intended to be a mortgage, and that this is a question over which the equity tribunals have. exclusive jurisdiction. Foley v. Kirk, 6 Stew. Eq. 170, 176 (Vice-Chancellor Van Fleet, 1880). In this case the complainants, who claimed under the grantor in the absolute deeds, had brought an action of ejectment, and the equitable jurisdiction to compel the surrender of the deeds, as mortgages which had been satisfied, was sustained on the ground that the question could not be tried at law. In Abbott v. Hanson, 4 Zab. 493, 497 (1854), the supreme court held that evidence could not be permitted in a court of law, in an action of ejectment, to show that an absolute assignment of a lease by a lessor was, in fact, a mortgage. No cases at law in this state admitting such evidence have been referred to or found. The estate in the lands, therefore, which remains in the grantor after an absolute conveyance intended as a |