By the Court. delivering the opinion.

Independent of the allegation in the bill, of the tender of the purchase money by Waters as the administrator of Mashihurn, which is denied by the defendant, we hold, that there is equity in the bill.

The bond itself is peculiar. It contemplates, that the vendee will go into possession of the land, for it is so expressed upon its face; but when or how long it might be before titles could be made, is uncertain. The notes for the two installments of the purchase money fell due at the end of the years 1834 and 1S35, respectively; and there was nothing to prevent their collection. If the land was recovered of Mashfcurn before the notes were paid, they were to be given up. If afterwards, the amount with the interest was to be refunded. There was nothing in the contract, we repeat, to prevent the collection of these notes. Why has payment of the purchase money never been demanded ? Is there no fault on the part of the vendor, in this matter, — especially looking to the contingency in the bond, upon which he was to make titles? There was some obligation upon him to move in this matter. He had a right to suppose that Mashburn was occupying the land, for the bond says, he was to go into possession. Why does Mr. Newsom stand aloof, and even now treat the subject as though he had no more to do with it than any third person ? Had he performed his duty, Brown would not have been involved in the unpleasant predicament of having purchased a lot of land at a high price, upon which he has made valuable improvements, and bought it too, not of squatters or interlopers, but of the heirs of him to whom it was sold by Mr. Newsom; and who have never *472refused to comply with their part of the contract. For it is a singular fact, that Mr. Newsom has never taken the first step to collect his money ; and the vendee has never refused to pay the price stipulated; and while the vendor is setting up the plea oí the statute of limitations for the vendee, as an excuse for not performing his part of the agreement, the vendee repudiates the interposition of this shield to screen him, and says, no ; “ I will pay the money, and here by my bill oifer to- do so!”

Had Mr. Newsom demanded his pay instead of resorting to an action of ejectment, he might have got it, and this is all he ever was entitled to. He prefers however to wait twenty years and then bring ejectment for the land, and say in his answer to the bill, that he would gladly have made titles at any time before the notes for the purchase money were barred, while no one pleads the bar but himself. The vendee does not; and whose fault is it, that they are barred. We insist from the nature of the contract, that the vendor had something to do himself, relative to this matter.

This is not a case for the statute of limitations, on either side. The possession set up under the bill, is not to constitute a statutory bar, by reason of an adverse holding. The vendee could never acquire a statutory title as against the vendor in this case. His possession might be adverse as to third persons, and so Mr. Newsom himself seems to think. For he says that, the outstanding claim which he apprehended, was at the instance of one Byne of Burke and which he says “ must have been long since barred.” Flow barred ? Mr. Newsom himself has never been in possession, nor any one else, except Mashburn, and those holding through him. And yet the defendant while denying all knowledge of their possession, and expressing the belief that the lot never was occupied until bought by Brown in 1853, still thinks that Byne has been barred long since, by reason of this very possession.

Why then, under the circumstances, should Mr. Newsom *473not be decreed to accept the purchase money and execute a title, and be perpetually restrained from the further prosecution of his suit at law, to recover the land? This tvas his bargain, the other side have never repudiated it. They are willing to pay and pray to be permitted to do so. If they have been negligent,'Newsom is far from being blameless in the same respect. True, lands may have risen in value; why did he not collect his money twenty years ago, that he might have re-invested it, as he says, he could have done, and perhaps lost it ? He no doubt took less for the land than it would otherwise have brought, on account of'the cloud which hung over the title. The purchase money with interest thereon at eight per cent, will amount at this time to some six hundred dollars. Be this sum more or less, than the present value of the land, there is more equity in compelling him to comply with his contract, than to allow him to evict the-tenant under the facts of this case. If the legal bar of twenty years has not run against Newsom’s bond, and from the proof, it had not, it is needless to talk about lapse of time. It has no application to the case. From 1837, to the filing of the bill for specific performance, is less than twenty years. Apart from strict law, however, we think the equity of the case is with the complainant.

Judgment reversed.