Abbott

The facts are these: That on or about the third day of December, 1906, one Mallory and H. E. Kellogg, defendant, entered into a written agreement for the purchase and sale of real property in Kings-county, under which agreement it was provided that a certain note should be paid on or before October 1, 1909; that certain interest upon other notes should be paid on or before such date; that Kellogg should pay all taxes and charges assessed against the property, as well as water taxes levied, on or before such date; time being made of the essence of the contract. It was further agreed that if the second party should be in default in the performance of any of the terms and provisions of the agreement, his rights should be at an end, and that if allowed to remain upon said premises thereafter, he should hold and occupy as tenant of the said Mallory. Possession of the premises was given at the time of the execution of the agreement. Kellogg made default in each and all of the obligations of the contract imposed upon him to be performed on or before the first day of October, 1909, and on the fifth day of October following, Mallory gave notice to him that his rights were forfeited under…