¶1By
¶2concurring.
¶3This was an ordinary action of ejectment for a certain parcel of land in Ormsby County. The defendant, Treadway, answering a complaint in the usual form, negatived the averments of such complaint, and subsequently, by supplemental answer, set up an additional defense of an equitable character — that a contract had been made between him and plaintiff for the land in controversy, ‘and that having complied with the terms of the agreement on his part, he is entitled to, and by way of cross action, prays a specific performance.
¶4*460The question, so far as I am advised, has never before been passed on by this Court; but in New York and California, under a code of procedure essentially like ours, it has been quite uniformly held that a person having a perfect equitable title to land in possession, could use it effectually in resistance to an action of ejectment, prosecuted by one holding the legal title. (Crary v. Goodman, 2 Kernan R. 266; Arguello v. Edinger, 10 Cal. R. 157 ; Morrison v. Nelson, 13 Id. 494; Estrada v. Murphy, 19 Id. 248 ; Webber v. Marshall, Id. 457; Lestrado v. Barth, Id. 660 ; Donner v. Smith, 24 Id. 114; Blum v. Robinson, Id. 127.) Moreover, in such a ease, if upon hearing the evidence the Court shall determine there is ground for relief, it will enjoin the further prosecution of the action with its decree for specific performance. (Webber v. Marshall, 19 Cal. 447; Lestrado v. Barth, Id. 660.) But to entitle a defendant to such relief the answer should contain all the essential averments of a bill in equity. (Id.)
¶5The defendant here makes no allegation of a demand for a deed. As the case stands, is such an allegation necessary ?' The general rule seems to be that a vendee, in addition to the payment or tender of the purchase money, must demand his deed before he can maintain an action for a breech of the covenant. (Gray et al. v. Dougherty et al., 25 Cal. 279, and cases there cited.) This general rule, however, has its exceptions. “ The chief office of a request,” says Sanderson, C. J., (Id. 280) “ is to perfect the breach and put the vendor in default, and this result may follow from other causes and circumstances as well as from a refusal to comply with an express demand. As, for instance, if the vendor refuses to receive the purchase money when tendered, thereby repudiating his contract, or by his own act prevents the vendee from performing his part of the agreement, or by any adversary steps makes it known that he does not intend to observe and perform his covenant, except upon compulsion, thus in effect .refusing in advance of a demand, neither law nor equity imposes upon the vendee the observance of a ceremony thus made idle and fruitless. Uuder such circumstances a Court of ‘equity will go so far as to interpose and compel specific performance before the vendee has complied with the contract on his part, when it would be inequitable and uncon-*461scientious to allow the vendor to evade his covenant, and will award a decree compelling specific performance within a certain time, provided the vendee shall have before that time performed on his part.” (See also the cases cited in the opinion.)
¶6Accepting this as a fair statement of the law bearing upon the-question in hand, and within these rules, if Treadway had brought suit directly against Rose to compel a specific performance, on the precise grounds set forth in his supplemental answer here, the want of a demand upon Rose for a deed before suit would be fully compensated in the pleading, by stating in effect that Rose claimed to be the owner and entitled to the possession of the premises in controversy, and was prosecuting an action to obtain possession of the same. But when the position of the parties, as in this instance, is reversed — Rose is first the actor, claiming in his complaint the ownership and right of possession to the land, and brings suit to eject Treadway from the premises — thus by his declarations and acts demonstrating beyond cavil that a demand upon him for a deed would be but an idle ceremony — so thoroughly supplies the adversary pleading and proofs upon the question of demand as to render entirely needless either such an avennent in the answer or evidence as to the fact on the hearing of the case.
¶7Entertaining the views expressed herein, it follows that in my judgment, in respect to the matter of demand, no amendment of the answer is necessary.
¶8Upon the other questions discussed I concur in both the reasoning and conclusions attained in the opinion of my associate. I also concur in the order reversing the judgment of the District Court.