Page:Federal Reporter, 1st Series, Volume 2.djvu/522

 BHERMAN P. SAVKRT. 516 �so understand the equitable rule. I think the doctrine defin- ing the rights and liabilities of a vendee under a contract of this character is settled as I have stated it. �The rule is thus given by Earl, J., (Miller v.Ball, 64 N. Y. 293 :) "It may be stated, as a general rule, that in ail cases where the contract is silent as to the possession, the land being vacant, and the vendee haa paid the entire considera- tion, and fuUy performed on his part, and ail that remains for the vendor to do is to give the deed, there must be an implied agreement or license that the vendee may at once take possession and have the use of the land." �If this doctrine is solid, then, although the county of Cerro Gordo granted ail the lands to the McGregor & Sioux City Eailway Company, and by the latter they were sold and con- veyed to Taylor, with knowledge of ail the facts, the equitable rights and liabilities of McKay and his successors in ulterest are not changed, and they should pay a proportion of the taxes which were a charge upon the land; at least, should reimburse Taylor, who held the lands in trust for them. �It is urged that the county of Cerro Gordo having wrong- fully withheld the deed when demanded by McKay, and refused to recognize his rights under the contract, and the railway company and Taylor being equally at fault, they should keep down the taxes, and Taylor is not entitled to any favor in a court of equity. If I am right in the construc- tion of this contract, and the equitable interest of the parties thereto was fixed when the condition was performed by Mc- Kay, then a refusai by the county to convey his intereat, and a grant of the lands to the railway company and to Taylor, did not change his equitable rights. He was placed in no better or worse position, so far as the equities are concerned, by the act of the county. The railway company took the title subject to his equities, and Taylor, with knowledge of the facts, occupied the same position as trustee. If the contract had been completed by the county, and a deed given, McKay and his successors in interest would have been required to pay the taxes. Why should they occupy a better position now ? At least, why should they not reimburse Taylor ? ����