By the contract of sale declared on, defendant’s testator agreed to sell the land therein described to plaintiff, for sixteen bales of cotton, of specified weight and quality, deliverable, four bales in October of each of the years 1890, 1891, 1892 and 1893 ; and, upon final payment, to make "good and warranted titles” to the lands. The plaintiff went into possession, and delivered the first two instalments of cotton, according to agreement, and, while in possession, made valuable permanent improvements upon the premises. When this purchase was made,July 25,1890, the vendor, defendant’s testator, had conveyed the land, by mortgage, to the State Bank, which afterwards transferred the mortgage to J. F. Leary and M.B. Houghton, who, on July 1, 1892, sold the land under the mortgage, themselves becoming the purchasers; and on July 15th, 1892, they evicted the plaintiff from the occupation of the land.
As' between the contracting parties, the contract of sale operated, in equity, a transmutation of the possession to the plaintiff, and he rightfully went into possession, with the equitable right to retain it until the time for the performance, when, by performance, the right would be perfected at law.— Wimbish v. Building & Loan Association,
The Circuit Court sustained a demurrer to the complaint, assigning as ground, that by the contract defendant was not required to make titles until after payment in full of the purchase price, and the complaint does not aver performance by the plaintiff, nor breach by the vendor or his executor. It wohld seem to be an answer to this demurrer to say merely that the defendant is not called upon to make titles to the land; that the complaint does aver a breach by the vendor, and that the plaintiff was in no default at the time it was committed. The first and third of these propositions are not debate-able. They will not be disputed. It is an established principle that a vendor commits a breach of his contract to sell and convey, when he does, or knowingly suffers to be done, an act which disables him to perform the contract on his part; and, by reason thereof, the vendee is authorized to treat the contract as rescinded, and sue for damages for the breach. See the many authorities collected on the brief of appellant’s counsel. If there is any qualification of the rule, arising out of any fact of this case, we have not been referred to authority for it. The case of Wilhelm v. Fimble,
It is obvious that a tender of the unpaid purchase money was not a condition of the vendee's right to treat the contract as rescinded, by the breach of the vendor, and sue for damages. — Johnston v. Collins,
The action was well brought, and the demurrer ought to have been overruled.
Reversed and remanded.