| Ala. | Jun 15, 1843
The contract for the sale of the land by the defendant in this court, to the plaintiff, and another, is exceeding
By the contract of sale, a portion of the purchase money was paid down, and a credit of about one and two years given on the residue, the vendor executing a penal bond with condition, to make title to the land as soon as he received it from the U. States.
As the time when the vendor could be called on for title, was uncertain, depending on his getting it from the government, whilst the time for the payment of the purchase money, was ascertained, the stipulations were independent. The vendor had a right to maintain an action for the purchase money, without aver-ing that he had made, or offered to make a title to the land sold, and on the other hand, the vendees could demand title before the payments fell due, if before thattjme the vendor by the receipt of the patent from the government, had been in a condition to make title. [Pordage v. Cole, 1 Saunders Rep. 320, note 4, and cases there cited.]
The title, however, was not received from the government by the vendor until after the last instalment for the purchase money fell due. After this, the vendees demanded the title which the vendor offered to make on the payment of the purchase money, which they refused to pay, and he thereupon declined making the title.
This refusal, by the vendor, was entirely justifiable, as will be seen by enquiring what was necessary to be done by the ven-dees to entitle themselves to a rescisión of the contract. A rescisión of a contract does not follow as a consequence of its non-per fonnance, by either party. [Stone v. Cover, 1 Ala. .Rep. 289.] If the vendor improperly refuses to make title on demand the ven-dee may bring an action on the bond and recover for the breach of the contract, such damages as he has actually sustained by the failure of the vendor to comply with his contract; but it is obvious that such an action does not necessarily suppose the contract to be at an end. If the vendee wishes by a rescisión to put an end to the contract he must himself be active and perform, or at least offer to perform the contract on his part. He must, in such a case as the present offer to pay the purchase money, and in addition,
It is true, that in reference to the abandonment of possession, circumstances may exist which would authorize the vendee to retain it. As where the vendor was insolvent and unable or unwilling to make the title; in- such a case, the possession might be retained as the only means of reimbursement for money paid on account of the purchase. Such was the case of Young v. Harris, [2-Ala. Rep. 108,] where relief was granted, under circumstances of that description, without abandonment of the possession by the vendor.
In this case, the vendees refused to pay the purchase money, although by their contract, it was due, retained the possession of the land, and now affect to 'consider the contract as at an end, although the vendor has always been willing to perform the contract on his part; such a pretension cannot be tolerated.
' The case of Haynes v. Farley, [4th Porter, 528,] relied on by the plaintiff’s counsel determines no point adverse to the view here taken. In that case, there was a breach by the vendor, of the condition of the bond for title, by his failing to make title according to its terms, and this court held, that after an action was commenced at law by the vendee to recover damages for its breach, a court of equity would not interfere at the instance of the vendor, who showed no excuse for the failure to comply with his contract, anterior to the breach. Here, there was no breach of the condition of the bond, but on the contrary, the vendor was always willing to comply with its terms, upon the performance by the vendees, of the contract on their part.
Our conclusion is, that there is no equity in the bill.
Let the decree of the chancellor be affirmed.