delivered the opinion of the court.

But two reasons assigned for error have been urged upon the argument. The first, and that chiefly relied on, is upon an exception to the charge of the court. Contrary to the charge, *587it is urged, that notice to quit was necessary in order to support the action, the defendants being in possession under a contract to purchase.

The question thus raised can hardly be considered as an open one at the present day. If a party be let into possession under such contract, and the sale be not afterwards completed, he holds strictly at the will of the vendor, unless there bo something in the contract of sale to the contrary. Arch. Law of Land. and Ten. 67.

But, strictly speaking, the relation of landlord and tenant does not exist simply because a person has entered upon land under a contract to purchase. Hence it has been held in this state, that no action for use and occupation would lie, the contract having failed in the case referred to by the death of the vendor before completion. Brewer v. Conover, 3 Harr. 215.

So in a late case in England, where the vendee of an estate, sold at auction, had been suffered to enter to hold the premises while the title was under investigation, and the contract had afterwards been determined for want of title. It was held that the vendor'could not, on these grounds only, recover for use and occupation, although the jury found that the occupation had been beneficial, the relation of landlord and tenant not having been contemplated between the parties. The defendant went into possession as purchaser, and the plaintiff could not convert him into an occupier liable to pay for his occupation, when he failed to complete his contract of purchase. Winterbottom v. Ingham, 7 Q. B. 611.

These cases seem to involve a principle not at all depending for its application on the fact, that the contract went off without any default upon the vendee. It is, that though there is ownership on the one side, and occupation by permission on the other, still use and occupation will not lie, if the occupation be given, taken, and kept under such circumstances as show that no contract of tenancy was in contemplation between the parties.

In Saunders v. Musgrave, 6 B. & C. 524, a tenancy was held to exist, but it was upon the strength of a stipulation in *588the contract of sale, that until completed, rent at a given rate should be paid.

In Doe v. Chamberlaine 5 M. & W. 14, where the stipulation was to pay at the rate of five per cent, per annum on the purchase money until the completion of the purchase, which was to be in three months, the purchase was not completed, and the vendee continued in possession. It was held that he was in strictly at the will of the vendor, and that ejectment would lie without notice to quit.

If not subject to the liabilities of tenants, there would be little fairness that vendees should be permitted to hold against vendors as tenants.

In our own state, in a case cited on the argument, it was held, that when a vendee under a contract of sale had been let into possession, and had leased a part of the premises to another, .and the contract had then gone off, that ejectment could not be maintained, either against the vendee or his tenant, who was also a defendant, without a-previous demand of possession. Den v. Westbrook, 3 Green 371.

Right v. Beard, 13 East 210, sustains the point so ruled, though in. some of the cases it has been held that not even a demand of possession is necessary when the contract has gone off by the default of the vendee. The lessor of the plaintiff, it has been said, after he has put the defendant in possession, cannot, without a demand of possession, or some wrongful act by the defendant to determine his possession, treat him as a wrongdoer and trespasser, as he assumes to do by the declaration in ejectment. Biit it was held, as well in Den v. Westbrook as in other cases, that there is no such relatiou of landlord and tenant subsisting between the vendor and the vendee, not even by construction, as will entitle the latter to a notice to quit. The point is well settled, and the only semblance of authority to the contrary which has come under our notice is the dictum of Chief Justice Hornblower, in Den v. Drake, 2 Green 531, which was not necessary to the decision of that case, and is in fact overruled by the deliberate decision of the same learned judge in Den v. Westbrook, before cited.

We think, therefore, that the jury were rightly charged, that *589no notice to quit was necessary, and that the lessor of the plaintiff was entitled to recover on proof merely of a demand of possession before action brought. Any equitable rights of the defendants, in consequence of a part of the purchase money having been paid, constituted no legal defence, and did not change the aspect of the case, as presented to the jury. The legal rights of the parties are alone involved in the present controversy.

It is assigned for error, that the court allowed the lessor of the plaintiff, who was otherwise unable to prove demand of possession, to examine one of the defendants as a witness. He was called by the plaintiff under the supposed sanction of the act, passed March 1, 1849, Pamph. L. 264,

This action was commenced in May, 1849, and the act did not go into effect until the fourth day of July of the same year, and it is insisted that, therefore, the act did not apply. But the act in express words enacts, that in all civil actions, &c\, “ the parties shall hereafter be admitted and sworn, &c., when called as witnesses by the adverse party,” and neither expressly nor impliedly limits such power to suits commenced after the act should go into operation. Again, it is a proviso of the act, that it shall not extend to any action brought upon a contract made before the fourth of July then next, and it is insisted that this action came within the proviso. It is a sufficient answer to say that this action was not brought upon any contract. The plaintiff claims simply under his legal title, entirely independent of any contract.

We are all of opinion that the judgment must be affirmed.

For affirmance — -The Chancellor, and Judges Nevius, Carpenter, Porter, Schenck, Cornelison, Risley, Ogden, Valentine, and Wills — 10.

For reversal — Hone.

The Chief Justice, before whom the cause was tried, and Randolph, J., absent, expressed no opinion