Joseph Costigan et al. v. Henry S. Wood

Joseph Costigan et al. v. Henry S. Wood. If the vendee of land, who has paid part of the purchase-money, enters into possession and fails to pay the residue according to the contract of sale, although de-mantled, the vendor cannot maintain ejectment against him without a notice to quit, or a notice that the contract is rescinded, or a demand of payment and notice of rescinding. Ejectment for lot No. 1, in square 882, in the city of Washington. The defendant claimed under a contract of sale, upon which he had paid sixty-three dollars, and taken possession of the lot, but failed to pay the residue, long since due, and unpaid at the time of the demise from the lessor of the plaintiff, although demanded. Mr. Bradley, for the defendant, moved the Court to instruct the jury, in effect, that the plaintiff cannot recover without a notice to quit, or a notice that the contract of sale was rescinded, or a demand of payment, with notice of rescinding. [MAJORITY — (Cranch, C. J.,] The Court (Cranch, C. J., contrd,) gave the instruction. The plaintiff then gave such a notice, and had*a verdict in his favor. Mr. Bradley, for the defendant, cited Jackson v. Rowan, 9 Johns. 330; Jackson v. Wheeler, 6 Johns. 272; Shepard v. De Bernales, 13 East, 565. Mr. R. J. Brent, for the plaintiff, cited Smith v. Stewart, 6 Johns. 45; 1 Saund. on Pleading, 565. In the cases cited from 9 Johnson, 330, and 13 East, 565, the defendant was lawfully in possession and in no default; so also in the case of Jackson v. Wheeler, 6 Johns. 272. See Smith v. Stewart, 6 Johns. 46, and the cases cited in the margin of that ease, 3d edition.