Field, C. J. concurring.

Ejectment for a lot in San Francisco. The case rests upon these facts: One Zottman, on the thirteenth of July,'1858, was the owner of this lot, and then entered into a written contract with Kelly for the sale of it. The instrument recites the terms of the agreement, which were, that Kelly was to pay §3,372 50, as follows: $872 50 on or before fifteenth August, with interest, etc.; $1,250 on the fifteenth November, 1858, with interest, etc.; and the remainder ($1,250) to be paid on or before March 1st, 1859, with interest, etc., notes to be given for these sums. It was agreed that on payment of these two first notes, then Zottman was to execute to Kelly a good and sufficient deed, with covenants against his own acts, and whereupon Kelly was to execute a mortgage on the premises for the security of the last note. Nothing was said in the deed about the possession. The first note was paid. Before the second note fell due, Zottman made a deed of .the premises to plaintiff, subject to the written contract with Kelly; and this deed contained a covenant of warranty against the acts of the grantor. On the fifteenth of November, 1858, Kelly sold to McEwen, one of the defendants. Possession seems to have been taken under this contract. *211It was proved that plaintiff, shortly after the fifteenth of November, 1858, saw Kelly and demanded payment of the second note, and tendered him a deed from himself (plaintiff) to Kelly, with the covenants mentioned in Zottman’s agreement. Kelly replied that he could not do anything. Plaintiff then made a formal demand for payment and execution of the mortgage. On the twenty-fourth of March, 1859, plaintiff demanded payment of the two notes then due, of McEwen, the assignee of Kelly, and tendered him the deed from Zottman to plaintiff, and tendered a deed from himself to McEwen, and demanded payment of the second note, and offered him a mortgage to be executed by him (McEwen) to secure the payment of the third note. Plaintiff also offered McEwen a tax deed. Plaintiff demanded possession from McEwen; all these demands were refused.

It has been seen that the legal title to this lot was in Zottman, and by him assigned to the plaintiff. It is true, an equity existed by virtue of the agreement and a compliance with its terms. But it is not so clear that this agreement gave, or was understood to give, a right of possession to Kelly, until a compliance by him with its terms—by the payment of the two first notes. The face of the paper would seem to indicate the contrary. The first two notes were to be paid at short time, and after the payment of the first and second, the agreement stipulates for the execution of a deed by Zottman, and of a mortgage by Kelly. If it were understood that Kelly was to take possession immediately, why was not a mortgage taken at the time for the payment of the whole purchase money ? Besides that there is no implication of a license to enter from the mere fact of an executory agreement of this sort, the particular facts of this case oppose the idea that the vendee was to have the consideration, or any part of the consideration, for which he bargained, until he complied with the terms of the bargain on his part. (See 22 Barb. 260, Spencer v. Toby)—a case which we do not entirely approve of, but which, we think, correctly lays down the general proposition as to implied license arising from a mere contract of purchase.

But we think the tender of the deed from Zottman to plaintiff, and which was offered by plaintiff to McEwen, was a sufficient assignment of Zottman’s covenants, when taken in connection with the tender of the deed from plaintiff to McEwen. Zottman, in his agreement, covenanted to make a deed to Kelly, on the payment of the second note, with a covenant against his own acts; Kelly transferred his right to *212McEwen; Zottman assigned to plaintiff, subject to this agreement, and in Zottman’s deed to plaintiff, he covenanted against his own acts. When McEwen got the deed of plaintiff, and also an assignment of the deed of Zottman, he received all he could have obtained by a literal performance of the contract between Zottman and Kelly. It is true that there was no written assignment of this covenant; but the turning over of the deed by plaintiff to McEwen in fulfillment of the contract, would have authorized McEwen or Kelly to use the name of plaintiff to enforce the covenant, if any cause of action existed; and besides, no objection was made to the mode of assignment by McEwen; but he declined generally to do anything in the matter.

But perhaps a more satisfactory answer to the defense is, that the defendant had no right, as against the plaintiff, to the possession, as we have seen, except on a compliance with the condition of paying the second note, or tender of payment. We see in the record no sufficient proof of tender. Clyde’s testimony shows a demand for the removal of a mortgage and a tax deed, in connection with the offer to pay the note; and the evidence of the other witness, Wilcocks, is not satisfactory. In order to make the tender effectual, so as to give the vendee a right of possession, the money should have been offered, and a deed demanded of Zottman, (if the payor was unwilling to take the deed of McEwen) and an offer to execute the mortgage. But no deed seems to have been demanded of Zottman; nor is it shown anywhere that the property had been encumbered by Zottman before his assignment to the plaintiff. As the contract was recorded, it is not easy to perceive how Zottman could have encumbered it so as to injure defendants after the execution of the agreement; and there is no proof that it was mortgaged before, even if such proof would have availed the assignee of Kelly.

What effect the recovery of the plaintiff will have on the rights of Kelly or his assignee under the contract, it is not necessary to determine here; nor whether, if the contract is to be considered as rescinded, the money already paid on it may be recovered by Kelly or his assignee. It is sufficient for all purposes of this decision, to hold that the plaintiff has the legal title, and the defendants no such equity arising from this contract, as to bar a recovery on that title in ejectment.

Judgment affirmed.