Purchaser taking possession before completion.

309, 313. And see below. Chap. XII. Sec. 4, as to apportionment of the outgoings.

(u) Powell v. Martyr, 8 Ves. 146, 149; Fludyer v. Cocker, 12 Ves. 25; A.-G. v. Christ Church, 13 Sim. 214; Birch v. Joy, 3 H. L. C. 565, 591; Ballard v. Shutt, 15 Ch. D. 122; Fletcher v. Lancashire, etc. Rail. Co., 1902, 1 Ch.

901, 908

(a) Above, pp. 51, 68.

(y) Smith v. Hibbard, 2 Dick. 730; Ecclesiastical Commrs. v. Pinney, 1899, 2 Ch. 729, 1900, 2 Ch. 736.

(z) Above, pp. 504-506.

(a) Burroughs v. Oakley, 3 Swanst. 159, 170.

If at the date of the contract for sale the purchaser be in possession of the property sold as tenant to the vendor from year to year or for any other term, and the contract is subject to the usual condition that the vendor shall show a good title, the tenancy is not determined at law pending completion of the contract (e); though in equity the purchaser, of course, has the rights incident to his position under the contract (f). And it appears that in such case, in the absence of stipulation to the contrary, the purchaser will be entitled to the rents and profits and liable to pay interest on the purchase money as from the date of the contract, notwithstanding that the contract be conditional on the vendor's showing a good title (g). If at the date of the contract the purchaser be in possession as tenant at will to the vendor, it appears that the tenancy is determined by the contract, and that thenceforth the purchaser is to be treated as being in possession under the contract (h).

Purchaser already in possession as vendor's tenant.

(b) Crockford v. Alexander, 15 Ves. 138; Humphreys v. Harrison,

1 J. &W. 581; King v. Smith,

2 Hare, 239, 244; Goodman v. Kinc, 8 Beav. 379; Wms. Real Prop. 552. 21st ed.

(c) See Crockford v. Alexander, 15 Ves. 138.

(d) Above, pp. 188 - 190.

(c) Doc d. Gray v. Stanion, 1 M. & W. 695; Tarte v. Darby, l5 M. & W. 601.

(f) Above, p. 504; Daniels v. ton, 16 Ves. 249, 253.

(g) Townley v. Bedwell, 14 Ves.

590, 597; Daniels v. Davison, 16 V, s. 249, 253; see Mills v. Haywood, 6 Ch. D. 196.

If an action be brought for the specific performance (i) of a contract for the sale of land and the purchaser be in possession, he may be ordered, pending the trial of the action, to pay the purchase money into Court, or at his election either to pay the money into Court or to give up possession. The Court makes such orders for the preservation of the property, which is the subject of the action, considering it unjust to allow the purchaser to have both the land and the purchase money in his possession pending the trial. Thus, if the purchaser exercise any act of ownership, such as felling timber or working mines, which impairs the vendor's security for payment of the price, he will be ordered to pay the purchase money into Court without having the option of giving up possession instead; and this is the case, whether the purchaser were put into possession pursuant to the contract or with the vendor's consent given after the contract (k). And where the vendor has shown such a title as the purchaser ought to accept, or the purchaser has accepted the vendor's title, the purchaser being in possession will be ordered to pay the purchase money into Court (/). Where the purchaser being in possession has done nothing to diminish the value of the property, he will not be ordered to pay the purchase money into Court without being offered the alternative of giving up possession (m); but it appears that, where he has been let into possession with the vendor's leave but not under the contract, he will, as a rule, be ordered to elect within a specified time whether he will pay the money into Court or give up possession, notwithstanding that a good title has not yet been shown (n), unless there be delay in making out the title attributable to tile vendor's laches (o). Where the purchaser has been put into possession pursuant to the contract for sale, the Court will not, in general, so put him to his election (p). And where the purchaser's right to possession is referable to some other title than that conferred by the contract or the vendor's leave given after the contract, as where he entered under a lease granted to him prior to the sale, there appears to be no ground for requiring him to elect as above mentioned (q).

Orders for purchaser in possession to pay price into Court or give up possession.

(h) Daniels v. Davison, 16 Ves. 249, 252, 253.

(i) The orders here mentioned will not be made at the instance of a vendor suing for rescission of the contract; but other proper orders for the preservation of the property in dispute may be made in such an action: Cook v. An-drews, 1897, 1 Ch. 266.

(k) Dixon v. Astley, 19 Ves.

564, 1 Mer. 133; Cutler v. Simons,

2 Mer. 103; Bradshaw v. Brad-shaiv, ib. 492; Bromley v. Teal,

3 Madd. 219; Pope v. Great Eastern Bail. Co., L. R. 3 Eq. 171; Lewis v. James, 32 Ch. D. 326, 330.

(l) Bradshaw v. Bradshaw, 2 Mer. 492, 493; Crutchley v. Jer-nmgham, ib. 502; Wood v. Edwards, 1876. W. N. 15.