Page:Federal Reporter, 1st Series, Volume 5.djvu/335

 WALKES V. TBAli. 323 �effect, the demain] required by tte agreement was a mere notice to quit to a tenant holding over after the expiration of lis lease or withput one. �There is, therefore, no good reason for applying in this case the strict and sometimea absurdly nice rule of the com- mon law touching the nature and effect of a demand which may have the effect to avoid (forfeit) an estate of great value for the non-payment of a comparatively trivial sum as rent or a legacy. There could be no forfaiture in this case — the defendant had nothing to forfeit. Having failed to comply ■with the terms upon which he was allowed to remain in pos- session of the property, his right thereto was already gone, and by the demand he was only required to surrender the possession to the party entitled, and even that only for the purpose of applying the profits upon his debt. On the con- trary, the rule applicable to this demand is the one which governs in the case of an ordinary demand for the possession of property to which the party upon whom it is made bas no longer any right ; and if it happens that more is demanded than the party is entitled to, it is a good demand so far as he is entitled, if the refusai is absolute, and goes to the whole demand. Nor do I think that this demand was even too large. It is described in the complaint as a demand for "the possession of ail said lands in pursuance of the provisions of said con tracts," and it is alleged that the defendant refused to "surrender the possession of any part" of them. �The defendant, as to Goldsmith's interest in the property, stands in his shoes, and had no right, as against the trustee or the plaintiff, that Goldsmith did not bave. He took his conveyance with knowledge that the legal title was in the trustee, and that default had been made in the payment of interest, and therefore took nothing by it but Goldsmith's right to the possession, which was then reduced to the mini- mum — the will of the trustee. �As to lots- 2 and 7, aforesaid, there is no question about the sufficiency of the demand. Goldsmith was the owner of them in severalty, and the trustee had succeeded to his right both ����