Page:Federal Reporter, 1st Series, Volume 7.djvu/340

 528 FEDERAL REPORTER. �year until the contract was performed and the patent deliv- ered. At the close, and after he had fully paid for the land, but had not received bis patent, he would still have but the equitable title, but it would be such an equitable title as vir- tually to constitute him the owner. The difference between his position then and before, while bis contract remained in force, was in degree only. He had purohased the land, and had agreed to pay the price in instalments. So long as he lived up to his agreement he was entitled to the possession, and the whole beneficiai ownership. Barnes v. Sabron, supra. �If Withington had' a vendible interest at the date of the sale, as I think clear, and there was no fraud, — and we cani^ot, in the absence of proof, presume any, — the whole matter is narrowed down to this question : whether it was the duty of Withington to continue to make payments to the state after the sale, and, if not, did the right to do so pass by the sale to the plaintiff, McWilliams ? �In the absence of any misrepresentation on the part of the defendant as to the extent of his interest at the date of the mortgage, I cannot see upon what prinoiple he would be bound to go on with his annual payments. So long as the property remained his under the contract it would be of interest to him to pay the instalments as they fell due; but after the property was sold the case would be different. I do not see that he would be any more bound to continue the payments th an in case he had assigned his interest in the contract voluntarily. And clearly, in that case, it would take a new personal contract on his part at the time to enable his assignee to compel him to make the payments. McWilliams purchased at the execution sale his interest in the land, whioh included the right to complete the payments himself and thus perfect the title. He succeeded to the interest of Withington and nothing more. The right of McWilliams, the purchaser at the marshal's sale, to go on and carry out the contract with the state seems to follow as a necessary deduction from the finding that the interest of Withington was subjectto sale under execution. �Wiiere there had been a sale of land under execution by a ��� �