By the Court, T. E. Strong, J.
The plaintiff was in possession of the premises several years, claiming title; and the defendant went into possession under a contract between the parties, whereby he agreed to purchase the improvements of' the plaintiff, and his title to the premises, as soon as it should be settled, if it should prove to be good, the title as stated in the contract being then in dispute. This was abundant evidence of title in the plaintiff to sustain the action, aside from the rights of the defendant under the contract. The prior possession of the plaintiff was prima facie evidence of his title; and the defendant, by taking possession under him, was precluded from 'disputing his title, except to show that the defendant was not in default in performing the contract. This is so, notwithstanding the recital that the title was in dispute, as a better title than the plaintiff’s is not recognized.
We are then to inquire, whether under the contract the defendant is entitled to the possession of the premises. The contract does not in terms give the defendant a right to the possession. If it gives him such a right, the right must be implied. In an ordinary contract for the sale and purchase of land, which is silent in respect to the possession, a license to enter will not be implied. The contract in the present case is peculiar. The plaintiff agrees first to sell his improvements on the lot to the defendant, for which the latter agrees to pay a specified sum at the date of the contract. It is not stated, and does not appear, in what the improvements consist, and no explanation is given as to the meaning which the parties attached to the term. And there is no evidence whatever, *269beyond the contract, on the subject of improvements made by the plaintiff. As the court cannot see by the contract, or the evidence, that something else was intended, I think improvements must be construed to mean work and labor generally of the plaintiff enhancing the value of the premises. This view is supported by the construction given to parol contracts for the sale of improvements on land, which are held not to be within the statute of frauds, as they are virtually contracts to pay for work and labor. (Lower v. Winters, 7 Cowen, 263, and cases cited.) It is next agreed by the plaintiff, after stating that the title of the land is in dispute, to sell to the defendant, as soon as the title is settled, if it proves good, the right of soil; and the defendant agrees, if the plaintiff procures such title, to pay a sum named, on receiving a deed. The contract is then, in effect, that the defendant will pay the plaintiff a certain sum for his work and labor on the land, and a further sum for a good title when the dispute in regard to the title is settled, with no express provision as to the possession. I think here is no ground for an implication that the defendant was, before a conveyance, to have possession of the premises. Whether it was wise in the defendant to pay down for the improvements, without securing a right to the possession of the land, or any right to a deed, except on the contingency specified ; or for the plaintiff to sell the improvements at the price agreed on, and give up the possession, without any obligation on the defendant to pay him for the title, except upon that contingency, was for the parties to determine; and which the court have not the means intelligently to decide. By omitting to insert any stipulation as to the possession, the right to the_possessfon was left with the plaintiff.
"The plaintiff having given the defendant the possession, if he was not entitled to it under the contract, does not affect the plaintiff’s right to recover. Hor can that act, subsequent to the contract, aid in the construction of the contract.
But assuming that the defendant was by the contract to have possession, no time being specified for its continuance, if the defendant has made default in performing the contract, his *270right to possession is thereby terminated. The evidence shows that just prior to the commencement of the action the plaintiff made and tendered to the defendant a proper deed of the premises, and demanded payment of the sum to be paid for the title, and the defendant refused to accept the deed and pay the money. It is insisted this evidence does not establish a default of the defendant; and that it was incumbent on the plaintiff, for that purpose, to prove in addition a regular chain of title to the premises from the original source, or that the title has been adjudged valid by a competent tribunal. In this I cannot concur. What the- dispute referred to in the contract was—whether or not a suit was pending involving the title— by whom the title was disputed—does not appear ; it does appear that the defendant had, at the time of the tender and refusal, been in possession of the premises about six years; there was no proof that he was molested in the possession, or indeed that after the date of the contract any one asserted a right to the land hostile to the title of the plaintiff. In the absence of any proof that the dispute continued, I think the possession of the defendant for such a length of time was prima fade proof that the title was settled, and good in the plaintiff; and in connection with the evidence of a tender of the deed and refusal to pay, proved a default by the defendant.
[Monroe General Term,
September 1, 1856.
My conclusion therefore is, that the judgment at special term is right, and should^be affirmed.
T. R. Strong, Welles and Smith, Justices.]