1. The contention of the plaintiff is that under the facts set up in the answer the defendant’s interest in the property in controversy is a mere equitable right and unavailing in an action at law. The well-established rule in this jurisdiction is that an equitable defense cannot be pleaded in an action at law, unless, perhaps, that right is given by B. & C. Comp. § 392, in actions to recover possession of real property — a question we need not now consider. "An action of ejectment involves both the right of possession and the right of property. The plaintiff in such an action must recover, if at all, upon the strength of his own title. He must show not only that he has a legal estate in the property, but also a present right to the possession: B. & C. Comp. § 326. Any matter, therefore, which goes to disprove the fact of wrongful withholding is a legal defense, whether it shows the defendant’s interest in the premises to be legal or equitable: Newell, Ejectment, 678; Cofer v. Schening, 98 Ala. 338 (13 South. 123). Thus, a mortgage in this State is a mere lien and does not convey the legal title, but possession of the mortgaged premises obtained by the mortgagee with the assent of the mortgagor is a good defense to an action of ejectment by the latter, so long as the mortgage debt remains unpaid: Roberts v. Sutherlin, 4 Or. 219; Cooke v. Cooper, 18 Or. 142 (22 Pac. 945, 7 L. R. A. 273, 17 Am. St. Rep. 709). In the federal *57courts the common-law rule that the defendant cannot set up as a defense in an action matters purely cognizable in equity is adhered to, but facts which estop the plaintiff from claiming possession of the premises as against the defendant are held to be a good defense to an action of ejectment: Kirk v. Hamilton, 102 U. S. 68 (26 L. Ed. 79); Killian v. Ebbinghaus, 110 U. S. 568 (4 Sup. Ct. 232, 28 L. Ed. 246). Upon the same principle the rule seems established that a vendor of real estate cannot maintain an action of ejectment against a vendee in possession under an executory contract of sale who is not in default: Warvelle, Ejectment, § 146; Prentice v. Wilson, 14 Ill. 91; Hutchinson v. Coonley, 209 Ill. 437 (70 N E. 686); Whittier v. Stege, 61 Cal. 238; Crary v. Goodman, 12 N T. 266 (64 Am. Dec. 506); Bigler v. Baker, 40 Neb. 325 (58 N. W. 1026, 24 L. R. A. 255). The answer, therefore, stated a good defense.
2. Error is also assigned on the refusal of the court to instruct the jury that the alleged tender or offer of performance by the defendant was unavailing, because he did not have the money actually present at the time. Under an executory contract for the sale of real estate, the vendor is the holder of the legal title as trustee for the vendee (Burkhart v. Howard, 14 Or. 39, 12 Pac. 79), and when the vendee has entered into possession under and in pursuance of the terms of the contract, the vendor cannot oust him so long as he is not in default; and when time is not made of the essence of the contract, he is not in default for failure to make the final payment until the vendor tenders a deed and demands such payment: Knott v. Stephens, 5 Or. 235; Sayre v. Mohney, 35 Or. 141 (56 Pac. 526). The question in this case, therefore, was whether the plaintiff, who is claiming a forfeiture of the contract, had herself performed, or tendered performance, and not whether the defendant had made a technical tender of the amount due. The delivery of the deed and the payment of the consideration were concurrent acts, and neither party could put the other in default without an offer to perform on his part: Guthrie v. Thompson, 1 Or. 353.
