Upon default by the purchaser, the vendor, or, if he be dead, his personal representatives, can sue the purchaser, or, if he be dead, his personal representatives, or his real representatives, if the agreement were under seal, and the heirs were named therein, for damages sustained by the breach of the contract (p).

Where a purchaser has been let into possession, and refuses to complete, the vendor cannot, if no conveyance has been executed, recover from him the whole amount of the purchase-money, but only the damages actually sustained by the breach of contract (q); this right of action is not taken away by a stipulation that if the purchaser shall fail to comply with any of the conditions the deposit shall be forfeited as liquidated damages (r).

If the purchase go off through defect of title in the vendor, the purchaser, if he have been let into possession, cannot be sued for use and occupation for the time during which the contract was pending, although the occupation have been a beneficial one (s): in the two principal reported cases it appears that the purchaser had paid, in one case all, and in the other part, of the purchase-money; but although this was in some degree relied on in the earlier, it does not seem to have been considered material in the later, of the two decisions: but if, after the contract is clearly abandoned, he retain possession, he will be liable in respect of such subsequent occupation (t). But the purchaser when let into possession, (unless under an agreement to quit in some specified event which has happened (u),) cannot be ejected without notice (w).

Death of vendor, purchasers right of action against his repre-sentatives.

Right of action in vendor or his representatives, against purchaser or his representatives, for breach of contract.

Vendor cannot recover entire purchase-money, if no conveyance.

Purchaser in possession, whether liable for use and occupation if no title.

(o) Sug. 259.

(p) Vide supra, p. 376, as to the liability of the heir and devisees upon the covenant.

(q) See Laird v. Pirn, 7 M. & W. 474.

(r) Icely v. Grew, 6 Nev. & M. 467.

(s) Kirtland v. Pounsett, 2 Taunt. 145; Winterbottom v. Ingham, 7 Q. B. R. 611.