There is no averment, oi\proof, of any fraud or deception on the part oí Ellis, in regard to the mortgage; nor is there any evidence -of a breach of the contract on his part. He has acted in good faith; and non constat, that he will not be able- and willing to give a perfect and unincumbered title to the premises, when it becomes his duty to execute a conveyance, according to the covenant. Hoskins has no justifiable cause for Rescinding the contract. For aught that appears, he had full knowledge of the mortgage,-when*he entered into the agreement. To permit, him to recover back the money he has paid would be'allowing him to rescind a fair and voluntary contract, on the ground of his mere will and pleasure, and thereby take advantage of his own default. If he had tendered the whole price -of the land, and demanded a deed free from all incumbrances,-a -different question might have arisen.
The case of Greenby v. Cheevers is in point for the plaintiff in, error, and the judgment of the court below must, therefore, be -'reversed.
Judgment of reversal;.