9 Kan. 443
Kan.
1872

*450The opinion of the court was delivered by

Valentine, J.:

This was an action for the recovery of real property. The facts of the ease are iu brief as follows: James Woodworth was the owner of a certain piece of land. On the 19th of September 1866 he sold it to John M. Courtney (plaintiff in error, defendant below,) for $500. One hundred dollars of the amount was paid down, and four promissory notes, each for $100, were given for the balance. The first note became due January 1st 1868, and was duly paid; the second note became due January 1st 1869, the third January 1st 1870, and the fourth January 1st 1871. The last three notes have not been paid. At the time of the sale, Woodworth gave to Courtney air ordinary title bond, binding himself to make a deed for the land when the purchase-money should all be paid. Courtney was put in possession of the land by Woodworth, in 1866, soon after the sale, and he has remained in peaceable and quiet pos session ever since, and has made valuable improvements thereon. After the second note became due James Woodworth, through his agent Ellis Woodworth, demanded payment of the same, and told Courtney that the time for payment could not be extended. Courtney said he could not pay it then, for the want of ineans. Nothing was then or at any other time said about, a rescission of the contract, or about Woodworth taking the land back. On the 26th of May 1869 James Woodwoi’th conveyed, by a quitclaim deed, all his right, title, and interest in and to said land to said Ellis Woodworth, wdio had full knowledge of Courtney’s rights. On the 30th of June 1869 James Woodworth died. What became of the three notes that were not paid, or whether an administrator -was ever appointed, is not shown by the record. On the 6th of October 1870, (before the last note was yet due,) Ellis Woodworth commenced this action as plaintiff to recover said land from Courtney. 'We do not think that he is entitled to maintain the action. Time -was not of the essence of the contract, as it was originally made, nor did it become such by any subsequent acts of the *451parties, or by any subsequent circumstances. Under and by virtue of the contract Courtney took possession of the property, took the right to hold and eipoy it, and gave his money and promissory notes in payment therefor. The ■entire equitable estate passed to him. Everything passed to him except the mere legal title, and that was held by Woodworth merely as a security for the payment of the Jiotes. The conversation, or conversations, held between Courtney (and his son) and Ellis Woodworth from January 1st 1869, to May 26th 1869, did. not rescind the contract. There was nothing said during said conversations about rescinding -the same, or about getting the land back. These convei’sations were not even notices that Wood-worth intended or desired to rescind. They were simply notices that Woodworth wanted his money, and would not ■extend the time of payment; and it would have been natural and not unreasonable for Courtney to believe that Woodworth intended to sue him on the note that was due. The court below finds that the contract was not rescinded by these conversations, but that it was subsisting up to May 26th 1869, when James Woodworth attempted to convey the property to Ellis Woodworth. The court below finds that by this attempted conveyance the contract was rescinded; but as no notice had been given that Woodworth intended to rescind the contract this supposed conveyance could not work a rescission of the same. Whether this is a case in which one party could rescind, without the consent of the othei-, we do not decide. Rut supposing it to be such a case, still one party could not rescind without the consent of the other unless he should first give an explicit notice, reasonable in its terms, that unless the other party should perform within a certain time he would then rescind the contract. Such notice was no,t given. Whether mere lapse of time could in any cqse like this give the grantor the right to consider the contract as rescinded, it is not necessary for us now to consider, for the lapse of time in this case was certainly not great *452enough to authorize Woodworth to rescind, or to consider the contract as rescinded.

When Ellis Woodworth obtained his supposed rights in the property one note only was due, and that had been due-less than five months. In less than six months after this note became due James Woodworth, the payee of the note, died. Whether there has ever been any person in existence-since that time to whom payment of that note, or payment of either of the other two notes, could legally be made, is not-shown by the record; nor is it shown whether the notes still belong to the estate or to some third party. The defendant in error probably relies almost entirely on the case of Kirby v. Harrison, 2 Ohio St., 326. But the case at bar differs in many essential particulars from that case, among which are-the following: In that case there were no notes given; the-grantee was never put in possession of the property; he never made any improvements on it; he never exercised any acts of ownership over it, not even paying the taxes and street assessments on it, (for it was a lot in the city of Cincinnati,) but allowing the grantor to pay them; the delay in payment was much greater in that case than in this, being thirteen and a half months after the first payment became-due before the grantor attempted in any form to rescind the-contract, and two payments were then due; and during this thirteen and a half months the grantor could not even hear from the grantee, who lived in another state, (Virginia,) although the grantor had written two letters to him. The grantee in that case seemed to have plenty of money, but willfully chose to use it for other purposes. No offer was made to pay the grantor until three years and four months after the first payment became due, and then it was a conditional offer, and lacked $180 of being sufficient in amount. A sufficient amount was never offered or tendered, although there was a person in béing in that case at all times to whom payment could legally have been made; and the case was not tried for over six years after the - first payment became due. And in that case the grantor did not even then claim that he-*453had a right of himself to rescind the contract; but he commenced an action in the court of common pleas for that purpose, (not an action of ejectment, as the action at bar is,) and asked the court to rescind the contract; and it was not then rescinded for more than six years after the first payment became due, and then it was done by the court, and not by the grantor himself.

The judgment of the court below is reversed, and cause remanded, with instructions that the court below render judgment in favor of the defendant .therein .and against the plaintiff for costs.

All the Justices concurring.