The opinion of the court was delivered, February 29th 1864, by
Strong, J.
The record .of this case has been once before under review in this court. It was then held that the plaintiff had no right to the possession of the land under his contract with Leonard, the agent of the owner. He might have obtained a right to the possession by paying or tendering the purchase-money within a reasonable time, and demanding a conveyance. Not having done that, any entry by him upon the land was unlawful. Unless there was something more than his agreement with Batdorf the owner, through Leonard, it was impossible for him to obtain possession rightfully, either actual or constructive. Actual possession he does not appear ever to have taken. But he procured an attornment to himself from Mason, who was in *539possession as the tenant of Batdorf, and who had been the tenant of Batdorf for many years before the plaintiff’s agreement to purchase was made. This was a fraud upon Mason’s landlord, and it was inoperative to transfer the possession from Batdorf to the plaintiff, unless it was done with Batdorf’s assent. Of such assent the case, when here before, was wholly destitute of evidence, and so it is now. There is evidence of assent to the contract made by Leonard as Batdorf’s agent with the plaintiff, to sell and convey the land on payment of the stipulated purchase-money, but nothing to show an assent to Mason’s attorning to the plaintiff, or even knowledge of Batdorf that he had so attorned. There was therefore no possession whatever, either in fact or in law, taken by Du Bois of the land in dispute. Mason necessarily continued to hold it as the tenant of Batdorf, and even if Batdorf had known of the new attornment, his delaying to turn the tenant out would be no evidence of consent to a surrender of his own possession. The plaintiff, therefore, is not in the condition of one who, having been fairly in possession, has been ousted by illegal means, and who may therefore recover the land back from the disseisor in virtue of his former possession. The cases of Harris v. Bell, 10 S. & R. 39, Gregg v. Patterson, 9 W. & S. 208, and D’Arras v. Keyser, 2 Casey 249, have no application to such a state of facts as exist here, for the reason that the plaintiff never had any lawful possession from which he could have been illegally ousted. And such seems to have been the opinion of this court when the case was here on the first writ of error: 7 Wright 260. The right of the plaintiff to recover, if any he has, was said to be that of a vendee under articles seeking to enforce their specific performance. The court below rightly understood our former position, and tried the case in accordance with it. The sole question, therefore, was whethei’, under the facts, as they appeared in evidence, the plaintiff was entitled to a decree that the land should be conveyed to him. That he was not, the court below thought, and such is our opinion for many reasons.
The executory contract was made on the 28th day of June 1849, and by it the plaintiff became liable to pay the purchase-money at once on the delivery of the deed. The initiative towards the consummation of the contract was for him to, take, not for the vendor. It was at the option of the vendor to rest quietly, or to proceed to enforce compliance with the agreement. The vendee had no such option. Having but a mere agreement for the title, dependent upon his own action, it was in his place to be vigilant and pressing. His right might be lost by laches; the vendor’s could not. Yet with such obligations upon' him, with such a necessity for prosecuting his claim to the land without unnecessary delay, he took no step to consummate the agree-*540meat until December 13th 1858, when this ejectment was brought. Even then he did not offer to comply with his covenant. He made no tender of the purchase-money until the 4th day of November 1863, the day when the last verdict in this ejectment was returned. Eor more than fourteen years he slept over the contract, without taking any step toward entitling himself to a conveyance. Such laches is fatal to his equity. And it is without any excuse.' Had he been in lawful possession, there would have been some apology for the delay, and perhaps a sufficient apology. His lawful possession would have been constant action under the contract, but, as has been seen, he had no such possession. Besides, he had notice that Batdorf disaffirmed the agreement. The land was sold to Bassler in 1854, and the deed was put upon record in 1858. Then the vendees of Bassler exercised acts of ownership upon the land by cutting timber, and the plaintiff was notified of it. Yet he suffered more than five years to pass before he offered to pay the purchase-money, which alone could complete his equity. In addition to all this, a material change has taken place in the value of the property since the agreement was made. In 1849, the price agreed upon was $626, or less than a dollar and a quarter an acre. The evidence shows that its value, when the money was paid into court,"was not less than ten times as much. Beyond the laches of the plaintiff, then, itself an insuperable obstacle in his way, he is met by a radical change in the condition of the parties, in the value of the property, and in the circumstances affecting the contract. He has therefore no equity which a chancellor would enforce, and the court was not in error in instructing the jury to find against him. We do not refer to the several assignments of error, simply because they are all shown to be unfounded by the general observations we have made.
The judgment is affirmed.
Thompson, J., dissented.
Woodward, O. J., was at Nisi Prius when this case was argued.