The facts of the case, so far as it is necessary to state them, as they appear from the pleadings and evidence, are as follows: The defendants, Lydia, Caroline J., John W., and Alice L. Graham, on the 22d -day of September, 1874, executed a bond obligating themselves to convey to plaintiff a certain tract of land in Cass county upon the payment of the purchase money according to the terms and conditions stipulated. The plaintiff alleges that he has made the payment provided for in the bond, and prays in his petition that the defendants named may be required to execute to him a deed for the land. Haskell is made a defendant to the action as one claiming some interest in the property. The Grahams do not contest plaintiff’s right to the relief asked. Haskell alleges that one under whom he claims as assignee purchased the land of the Grahams, June 12th, 1873, by a contract with the agent of the owners, whereby he agreed to pay different installments of the purchase money at specified dates, and did pay fifty dollars at the time of the making of the contract, for which a receipt was given him expressing the terms of the agreement. This receipt stipulates that a bond for a deed is to be executed to him as soon as $200 of the purchase money is paid. He alleges that he went into possession of the land and that plaintiff Anderson had full notice of his rights and equities under the contract of purchase, which he prays, in a cross-bill, may be enforced.
It will be observed that the contest in the case is exclusively between plaintiff and Haskell, and it is conceded if the latter has no right to the land plaintiff is entitled to a decree.
It is not disputed that a contract of the character alleged by Haskell was made by the Grahams, through their agent, for the sale of the land to one Noble, who assigned it to Haskell. The point which we are to determine involves the exist
III. Haskell' arranged with one Dudley to pay the purchase price of the land and take the deed in his own name. Dudley offered to, pay the agent of the Grahams and take the deed. This was after the rescission of the contract, and the offer was refused on that ground. It cannot be regarded as an attempt to perform the contract.
Affirmed.