The opinion of the court was delivered by
Rogers, J.
By the article of agreement, dated the 24th of June 1834, Pond agrees to convey to Dauchy the premises in dispute, and to give him the possession on the 1st of March ensuing. In consideration Avhereof Dauchy agrees to pay 1000 dollars, 100 dollars in hand, 400 dollars on the 1st of May ensuing the date? and 500 dollars in two years from the said 1st day of May. The article further provides, that if Dauchy should fail to make payment, as before mentioned, the agreement is to be null and void and of no effect. Dauchy took possession of the property and held it until some time about the 1st of May 1S35, when having failed to make payment, Pond took possession. This ejectment, which is in the nature of a bill in equity to enforce the specific performance of the contract, was brought to the August term, 1S36. The principal question arises on the construction of the agreement, whether time is not made the essence of the contract, and whether *51it did not become void on the failure of the vendee to make the payment according to his stipulation. It was at one time seriously doubted whether time could be made of the essence of the contract; but that this can be done must now be conceded: so that in those cases where there is a default in payment at the day, without just cause, and without any waiver afterwards, a court of chancery will not interfere to help the party in default. Benedict v. Lynch, 1 Johns. Chan. Rep. 374; Mad. Chan. 416, 417; Sug. Vend. 416. That it was intended that time should be of the essence of the contract is apparent, from the agreement itself, and the conduct of both the parties to it, and in this particular the case bears a striking resemblance to Benedict v. Lynch, in which Chancellor Kent reviews all the authority and puts the principle on the strong ground of precedent, and reason. The purchaser, after having taken possession, failed to make payment, and it did not seem to occur to either, that any difficulty could.be made, until there was a rise in the value of the land. After the return of Dauchy from the eastward, where he had been to endeavour to raise the means to enable him to comply with his engagements, he observed to one witness, that he had concluded to give up the bargain, to another, that he had been to New York to get money to pay for the land, and had been disappointed, and that it would be better to give it up. He told the same witness he had given it lip, and loaned him 200 dollars of his money. He said to another, who applied to him for permission to pasture a cow on the land, that he had given up the land to Mr Pond, and could not let him have pasture. It appeared, also, that Dauchy had some stock on the land, which he took off soon after he came home, and after the conversation with the witness. After this, Pond took possession. If this testimony, is entitled to credit, there can be but little doubt that Dauchy considered the contract at an end. But whether he thought so or not is immaterial, for whether the contract should be in force depended on Pond himself, and not on Dauchy, who. was in default. The difficulty between the parties would seem to have been not as to the continued obligation of the contract, but whether Dauchy should be paid for his improvements, or whether he should be charged for the use of the land. But the act of taking possession after Dauchy’s failure to comply with his agreement, was an unequivocal act, in disaffirmance of the contract Pond also evinced the same determination, by tender of the money which had been paid by Dauchy on the contract. It is said, without the shadow of proof, that Pond waived all objection to its non-performance, but every act of Pond is in opposition to this suggestion.
There was, also, error in rejecting the evidence of the value of the land. It gives the key to the subsequent conduct of Dauchy in insisting upon the specifice performance of the contract. In Irvine v. Bull, 7 Watts 323, it is held, that, in an action on a contract for the purchase and sale of land, where the plaintiff seeks to. *52compel specific performance, evidence of the value of the land is pertinent to the issue. Equity will not permit a purchaser to lie by and speculate upon the rise in the value of the estate. And even if he has paid part of the purchase money, they will leave him to his remedy at law.
Judgment reversed and a venire de novo awarded.