Dunham v. Townsend , 110 Mass. 440 ( 1872 )

Ames, J.

It was correctly ruled at the trial that the agreement under which the defendant entered upon the premises was not a lease, and that his right to occupy under it did not expire upon the failure of the plaintiff to deliver the deed at the stipulated day. The defendant entered as a purchaser, and not as a lessee. He assumed no obligation to pay rent, and his promise to pay interest upon the agreed price was not for the use of the land, or founded upon any estimate of the value of such use, but as forbearance of payment of a sum which he had undertaken to pay. Dakin v. Allen, 8 Cush. 83. Larned v. Clark, Ib. 29. In case of refusal by the occupant in such a case to complete the purchase, he may thereafter become liable as a tenant at will. Gould v. Thompson, 4 Met. 224. Towne v. Butterfield, 97 Mass. 105. Howard v. Shaw, 8 M. & W. 118. But the refusal of the plaintiff to fulfil his contract for the sale of the premises does not release him from his obligation, or convert the occupation by the defendant into a wrongful holding over after the expiration of his right. On the contrary, the defendant, until August 3, 1871, had a right to compel the specific performance by the plaintiff of his contract to make the conveyance. If the defendant had sought his remedy in that form in equity, instead of bringing an action at common law to recover damages for the breach of the contract, the result would have been a decree compelling the plaintiff to make the conveyance, on payment of the consideration money with interest. At the date of the notice to quit, the defendant was in the lawful occupation of the premises. He had entered upon them, under a contract in writing and under seal, by the terms of which he had a right to “ the full possession of the premises ” “ till delivery of said deed.” It was no part of the contract that his possession was to terminate on the day when the deed, according to the terms of the bond, should become deliverable. There is nothing in the case that indicates that the plaintiff’s failure to deliver the deed on that day was considered by either party as a renunciation of the contract, or as anything more than a mere postponement of its execution. The plaintiff certainly cannot better his condition, or enlarge his rights in the premises, by his own violation of good faith. He was the only party who, up to that date, had broken the contract, and it was not in his power by so doing to convert the defendant’s lawful occupation into a trespass, or wrongful holding over.

The exceptions are therefore overruled.