The service of the notices by Patterson, taking possession of the premises, and the acts and declarations of the parties at the time clearly evince an intention on his part to declare the contract thenceforth at an end, and the payments made thereon forfeited for the default of the purchasers in making payment according to its terms. It is clear, also, that Anthony Furness, 2d, in his own behalf, refused to perform the contract and intended to abandon it; that he and the widow of Thomas Furness, as administrators, were unable, for the want of personal assets, to make the payments, and that they acquiesced in the forfeiture and intended to abandon the contract and all claim under the same.
The referee and the Supreme Court were therefore manifestly right in holding, first, as to Anthony Furness, 2d, that he had no claim either for a specific performance or for compensation; and second, in the language of the learned judge who delivered the opinion in the court below, that "the heirs could not well have a specific performance of the contract against Patterson for reasons too obvious to require comment." Time is not generally deemed in equity of the essence of the contract unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. (Story's Eq. Jur., § 776.) But time may be made of the essence of the contract by express stipulation or necessary implication, or by subsequent notice insisting upon the contract being completed within a reasonable time. (Id. note 1, Dart. on Vendors, 211, and cases there cited.) *221
Not only was the notice given in this case to Anthony Furness, 2d, one of the purchasers, and to the administrators of Thomas Furness, who were in possession, but the vendor evinced a willingness to perform the contract on his part, and a desire to have it performed on the part of the purchasers. The evidence shows, on the part of the vendor, the utmost fairness and regard for the rights and interests of the other parties; and it was not until the latter had refused to perform the contract, and substantially expressed the intention to abandon it, that he availed himself of his legal right to terminate it and resume possession of the premises. He occupied the premises about eight years, made valuable improvements thereon without any claim or molestation from any source. It is now insisted that the heirs of Thomas Furness, while they have no right to a specific performance of the contract, are entitled to compensation for the reason that, upon his death, his interest in the land under the contract descended to them as real estate; that the administrators could do no act to divest them of their title, and that, being infants, they could neither be prejudiced by the acts of Patterson or the administrators, nor by lapse of time. It is true that the interest, which Thomas Furness had in the land at his death, was an interest in real estate and descended to his heirs. He was the equitable owner of the land in common with his co-purchaser, subject, however, to the terms and conditions of the contract. (Champlain v. Brown, 6 J. Ch., 398; Dart on Vendors, 114, and cases cited.) Upon his death his heirs took his interest by descent, subject to the same conditions. (Id.)
The rights of the vendor were not affected by the death of one of the purchasers. It was as lawful for him to enforce the contract; to demand its performance, and to insist upon a forfeiture for non-performance after as before that event took place. It is claimed, however, that the heirs should have had notice, or that judicial proceedings should have been instituted to foreclose their rights, and this presents the material question in the case. The answer to it is obvious. *222
Although the equitable title under the contract was held by the purchasers as tenants in common, yet the contract itself was single. As to the vendor, the purchasers were one party, and a notice to one being in possession, and a refusal by him to perform in the absence of collusion or bad faith, was sufficient, and affected the rights of the purchasers and the vendor under the contract, and to the same extent as though both had been served. This principle was expressly recognized by this court in the case of Carman v. Pultz (
The views above expressed render it unnecessary to determine the other questions presented. The judgment must be reversed and a new trial ordered, costs to abide the event. *224
All the judges concurring in reversal.
Judgment reversed and new trial ordered.