We fully recognize the principle, that the true consideration of the notes was the land, and not the covenants in the deed, and as the title to the land had been defeated by an incumbrance prior to the deed to the defendant, the title at the time of the maturity of the notes had failed, and so the consideration of the notes failed, if the defendant so chose to treat it, and the defendant then had the right to repudiate the contract of sale, and the notes, for the reason that the consideration of the notes had failed. But the mere declaration that he repudiated the contract was not sufficient to effectuate that purpose. He should have put the other parties in statu quo, by a reconveyance of the land, or at least a release of the covenants in the deed, so that any subsequent title acquired by the grantor in his deed, would not enure to his benefit and vest in him. He did not do this, but retained the deed and the covenants until his grantor did actually acquire a good title to the land which instantly vested in him, and that title he still holds, and so it was when the action was commenced. While he held the deed and maintained a position to receive a perfect title to the land so soon as his grantor should acquire one, the defendant could not fully and effectually repudiate the contract of purchase. The judgment is reversed, and the cause remanded.
Judgment reversed.