ceased to exist, because the defendant had refused to comply with the terms and conditions of the agreements, and repudiated them. A vendee in possession of land cannot repudiate his contract of purchase and at the same time hold the possession under it and by virtue of it. A repudiated contract is no protection to an intending vendee in possession against the legal title. If the defendant denied repudiation and relied upon readiness and ability to perform, which was prevented by the plaintiff, or an offer to perform which was rejected, those were matters in defense to the action at law, or for the consideration of the court, sitting as a court in equity, in the equitable cross-action. (Clark v. Lockwood, 21 Cal. 220; Meador v. Parsons, 19 Cal. 294; Lestrade v. Barth, 19 Cal. 666; Cadiz v. Majors, 33 Cal. 288; McCauley v. Fulton, 44 Cal. 356; Tormey v. True, 45 Cal. 105; Kenyon v. Quinn, 41 Cal. 325.)

Upon the trial the court found that defendant had never performed, or in good faith offered to perform, either of the agreements, according to their terms and conditions; that he had not been prevented from performance by any act of the plaintiff; that plaintiff had tendered a deed and demanded performance, but defendant had absolutely refused; and that both he and Wheeler had wholly failed and refused to perform the agreements or any part thereof, except to deliver to the plaintiff about 136 sacks of wheat, of the average weight of 135 pounds each, which the plaintiff received from them in the fall of 1880, and because of the delivery to the plaintiff of that quantity of wheat, in part performance of the agreements, and of the entry and possession by the defendant under the agreements, it is contended that ejectment is not maintainable by the plaintiff as vendor, against his vendee in possession, who has refused to comply with the terms and conditions of the agreements, or to quit and surrender possession of the lands; and that his only remedy is in equity to foreclose his vendor's lien for the purchase money. Willis v. Wozencraft, 22 Cal. 614, and Bohall v. Diller, 41 Cal. 532, are cited to sustain the contention. But neither of those cases is analogous to the case in hand, nor does either sustain the contention of the appellant. In Willis v. Wozencraft the vendor and vendee had been in possession in common, each "having a full right' to an undivided half of the rents and

profits." Being thus in possession, the vendee agreed to purchase the undivided interest of his co-tenant, who had the legal title to the entire estate in his name, and took from him a bond for a deed, upon payment of the purchase money, in which it was especially stipulated that the vendee had the right of possession to an undivided one half of the premises. Against the vendee thus in possession in his own right, and under the contract of purchase, a grantee of the vendor brought ejectment, solely upon the ground that he had acquired the legal title to the land. But before suit she had made no demand to be let into possession of her share with the defendant, and there was no proof in the case of any special facts tending to show either an actual or constructive ouster of the plaintiff, nor was there any evidence tending to show the tender of a deed and demand and refusal to pay the purchase money after it became due, or that the purchase money had not been paid, or that the defendant had abandoned the purchase, or refused to complete it according to the terms of his contract. The defendant had, therefore, done nothing to forfeit the benefit of his contract; and, being rightfully in possession under his equitable title, he could not be disturbed.

The defendant in Bohall v. Diller had also entered into possession of the land in dispute under a contract of purchase. The purchase money had become due and was unpaid at the commencement of the action, and, relying solely upon that fact, the vendor, without having put the vendee in default, brought a peculiar action against the vendee, to recover damages for an alleged breach of the contract, possession of the land, and also the purchase money. But the Supreme Court held that he could not recover damages, because he had not alleged any; nor the purchase money, because, although it had become due before the commencement of the suit, yet as there was no allegation of tender of a deed and of demand and refusal to pay, the defendant was not in fault; nor could he recover the land, because there was no evidence tending to show that the contract had been rescinded by the parties; therefore the right of possession was in the defendant and must prevail.

The doctrine deducible from those cases, as well as from others in this State, is that ejectment is not maintainable by a

vendor of real property against his vendee in possession under an executory contract of sale, who is not in default in the performance of his contract, or who has performed it and is in a position to demand a deed, or who seasonably and in good faith offers to comply with the terms of his purchase, and continues ready to comply with them. To a vendee in possession under such circumstances the contract will avail him as an equitable defense to an action of ejectment brought against him by his vendor, or as a cross-action in equity to enforce a trust against his vendor, or to obtain a specific performance of the contract. (Love v. Watkins, 40 Cal. 548; Gerdes v. Moody, 41 Cal. 336; Talbert v. Singleton, 42 Cal. 395; Willis v. Wozencraft, and Bohall v. Diller, supra; C. P. R. R. Co. v. Mudd, 59 Cal. 585.) But if after maturity of the purchase money the vendor tenders a deed, and demands payment, which the vendee refuses to make, or if the vendee has abandoned the purchase, and repudiates the title of his vendor, in such case the vendee forfeits the benefit of the contract, and he cannot avail himself of it as a defense to an action of ejectment by his vendor (Pearis v. Covillaud, 6 Cal. 617; Whittier v. Stege, 61 Cal. 239; Thorne v. Hammond, 46 Cal. 530); nor by way of a cross-action for specific performance. For it is well settled that a court of equity, in the exercise of its judicial discretion, will not decree specific performance of a contract for the sale of land in favor. of a party who, by his own negligence or default, has prevented or unreasonably delayed the full execution of the contract. (Conrad v. Lindley, 2 Cal. 173; Brown v. Covillaud, 6 Cal. 566; Green v. Covillaud, 10 Cal. 317; Willard v. Tayloe, 8 Wall. 557.)

That was the position of the defendant on his cross-complaint. By his own showing he abandoned the purchase of one of the contracts and disclaimed the title of his vendor; but having entered into possession under the title and in subordination to it, he was estopped from denying it. (Hoen v. Simmons, 1 Cal. 119; Salmon v. Hoffman, 2 Cal. 139; Walker v. Sedgwick, 8 Cal. 403.) And as to the other contract, he neither averred a tender of the purchase money nor offered to pay it. (Marshall v. Caldwell, 41 Cal. 611; Englander v. Rogers, 41 Cal. 420.) One who appeals to a court of equity to defend him against the

legal title to land, of which he is in possession, must do equity by paying the price which he agreed to pay. The maxim, "he who seeks equity must do equity," applies to him in full force. (Eastman v. Plumer, 46 N. H. 464.) The cross-complaint of the defendant, therefore, lacked the essential element of a complaint in equity.

Nor had the defendant any equitable title which would serve as a defense to an action of ejectment. Having abandoned his purchase and repudiated his contracts, he was not a purchaser clothed with right, and his vendor was not bound to resort to a court of equity for relief; he may sue in ejectment. (Keller v. Lewis, 53 Cal. 118.)

"The refusal of one party to perform his contract," says the Supreme Court of New York, in Graves v. White, 87 N. Y. 465,"amounts on his part to an abandonment of it. The other party therefore has a choice of remedies. He may stand upon his contract, refusing assent to his adversary's attempt to rescind it, and sue for a breach, or in a proper case for a specific performance, or he may assent to its abandonment, and so effect dissolution of the contract by the mutual and concurring assent of both parties. In that event he is simply restored to his original position, and can neither sue for a breach nor compel a specific performance, because the contract itself has been dissolved. . . . . An absolute refusal, a deliberate repudiation of the stipulations of the contract, gives to the other party as an alternative remedy the right to assent to such abandonment and treat the contract as dissolved." In the present case such refusal was proved. The defendant undertook to repudiate the contract and at the same time held the possession under and by virtue of it. If the plaintiff could have stood upon the contract and compelled performance or recovered damages for the breach, he was not bound to adopt that remedy, but had the right to bring ejectment to recover back his land. In so doing, and giving the preliminary notice to surrender possession, he, too, gave his assent to the abandonment of the contract; and the parties who made it having thus by mutual assent rescinded it, its validity was gone and it ceased to exist. Neither party, thereafter, could invoke its terms or protection as against the other; and the plaintiff was at liberty to maintain ejectment to

recover the possession of the land to which he had a legal title. (Jackson v. Moncrief, 5 Wend. 26; Wright v. Moore, 21 Wend. 230; Pierce v. Tuttle, 53 Barb. 167.)

The court found that the former trial and judgment between the parties was not an adjudication of the matters contained in this action. The finding is sustained by the record of that case, which shows on its face that the questions involved in this were not raised, tried, and determined in that; and also by the evidence which the defendant gave, under his pleadings, as to the facts upon which that decision was based. (Megerle v. Ashe, 33 Cal. 84.) The former adjudication was, therefore, no bar to the action in hand.

Lastly, it is assigned as error that the court overruled the objections taken by the defendant to the official reporter's transcript of the testimony of a witness given on the former trial and offered in evidence by the plaintiff. No objection was made that the witness was not shown to be beyond the jurisdiction of the court, nor as to the mode of proving his testimony, The only objections were that the testimony itself was not signed by the witness; that it was not his deposition, and that it was secondary evidence. But by subdivision 8, section 1870, of the Code of Civil Procedure, it is provided that "the testimony of a witness deceased, or out of the jurisdiction or unable to testify, given in a former action between the same parties, relating to the same matter," may be given in evidence. And as it was proved that the witness was out of the State, and no objection was made to the transcript as evidence of his testimony, there was no prejudicial error in the ruling.

Judgment and order affirmed.

Ross, J. and MCKINSTRY, J., concurred.

Hearing in Bank denied.