As the defendant recovered at law, the purchase money, with interest on it from the 10th of July, 1848, (when, upon payment of the price, Fleming, was by the terms *424of the contract entitled to the possession,) the property and the profits of it, are to be regarded in equity, as belonging to Fleming, for that time. The profits of the premises came in the place of the interest which constitutes the profits on the price. But the defendant is not liable for rent except for those periods, during- which he had the enjoyment. A vendor, who retains the possession and the title, as a security, not merely for the payment, but for the punctual payment, of the purchase money, is not precisely'- like a mortgagee, who tnrus the mortgagor out of the premises yielding, or that might yield profits, and enters himself. Snell a mortgagee may be justly chargeable with the profits made by him, and also, with such as he might, and, therefore, ought to have made; for he is at liberty to occupy or let the premises, and, unless he means to do so, and apply the profits to the mortgage debt, he ought not to eject the mortgagor. But, a vendor, in a case like this, is under no obligation, and has no authority, but by the direction or request of the vendee, to let the houses, to the possession of which the vendee may entitle himself at any moment, by the payment of the price. Therefore, the defendant, in this case, is liable only for a fair rent for such parts of the premises as he may from time to time have occupied and enjoyed; and, he is liable for that upon the principle, that he has derived benefit to that extent out of the equitable estate of his vendee.
But the plaintiffs are not entitled to the whole of that rent; because, that which accrued in Fleming’s lifetime, formed part of his personal estate, and went to his administrator.— But they are entitled to that for the term between their father’s death, and the conveyance and surrender of the. premises to them; and they are entitled to receive it here, because they could not recover it at law, for the want of the legal title at that period. There must, therefore, be a reference to the clerk to enquire for what period the defendant occupied the premises, or any, or what part thereof, or let the same, and to fix a reasonable rent for the same, and, after making the defendant all just allowances for taxes, repairs, and other proper *425outlays, report the sum which the defendant ought to pay the plaintiffs for the rent or profits of the premises by him made or received.
Per Curiam, Decree accordingly.