Joyce

This appeal is from a judgment upon demurrer to the complaint. It is an action to recover the first installment paid upon an executory contract for the sale of land. The demurrer is general, that the complaint does not state a cause of action.

From the complaint it appears that on the 26th of July, 1887, Miss S. A. Popplewell entered into an agreement with defendants in writing, whereby she agreed to *337 pay them $1,250 in three installments,—one at the execution of the agreement, one in one year, and the third two years from date,—in consideration of which they sold and agreed to convey to her certain lands. The contract contained the usual covenants, making time of the essence of the contract,- and providing for a forfeiture of installments paid, as liquidated damages, in case of failure to make any of the payments as stipulated. The first installment was paid, but no more.

December 18, 1889, about five months after the last payment fell due, defendants, without having tendered a deed to Miss Popplewell, or demanded payment from her, without her consent conveyed the land for a valuable consideration to one J. H. Bryant.

July 23,1891, Miss Popplewell duly assigned said…