delivered the opinion of the Court,

We concur in opinion with the learned judge in the court below that upon the special finding of the jury the equity of the defendant was not extinguished, and that he was entitled to a conditional verdict in his favor. The vendor undertook, it would seem, to provide a summary remedy for himself, and he must not be disappointed if he is required strictly to pursue the course prescribed. The jury have found that there was a mere going upon the premises and a sale, in pursuance of the notice. Surely this was not a “ taking possession’' according to the terms of the contract.

But really the clause in the article gave the vendor no right or remedy which he did not possess without it. It is hornbook law that the legal owner can take possession if he can do so without a breach of the peace. If an action of trespass is brought against him he can justify under the plea of liberum tenementum. He cannot be dispossessed by an ejectment except by some one suing on a better title. If it be as in this instance a vendor who has regained possession peaceably, his vendee can eject him only by showing that he has paid the purchase-money and has a right to call for a conveyance. What wTas there in the clause of the article in question to show that it ivas intended by the parties that the equity of the vendee should be entirely extinguished and gone ? Nobody doubts that the vendor could maintain ejectment on his legal title without any formal entry or taking possession. The learned counsel for the plaintiff in error very candidly concedes that it may be doubted whether possession obtained under this clause in the agreement would extinguish the vendee’s equity. There can be no doubt that if tfie vendor had recovered in ejectment and been placed in possession by the sheriff, the equity of the vendee would not be affected. He would still have a right to recover back the possession upon tender or payment of the whole purchase-money, unless a conditional verdict taking the place of a decree in equity had limited a time for the payment. The recovery in ejectment by the mortgagee certainly does not foreclose the mortgage and extinguish the equity of redemption. Neither does the recovery by the vendor. But the learned counsel contend that the right after taking possession to sell to any other person is plainly inconsistent with any equity in the vendee. Why so? The article does not expressly sa.y nor necessarily imply that the sale shall be discharged of the equity, and ought we to import such a provision into the contract without some word on which to found it? We have seen that the bare agreement that he should take possession the vendor no right he did not without it; *258why then should the agreement that he might sell to any'other be construed to give him any power which he did not possess before ? He might without it have sold his legal title. What is there in the contract which says he shall do more ? The purchaser took with notice of the defendant’s equity, and of course subject to it.

Judgment affirmed.