The opinion of the Court was delivered by Mr. Chief Justice Murray.
Mr. Justice Terry concurred.
*189The Court below properly refused the injunction. The ease made by the bill does not come within the rule established by this Court, when this cause was here before, (see 5 Cal.) The plaintiffs cannot avail themselves of a proceeding in chancery to avoid the payment of the purchase money, without offering to rescind the contract and return possession to the defendant. The allegation that they have made valuable improvements, does not talce the case out of the rule. They have had the use and enjoyment of the land, and the improvements may be a fair offset for the rents and profits. Certainly, a Court of Equity should not permit a party to avoid the consequences of his contract, while he is in possession, which possession may ripen into a title, unless he offers to put the opposite party in statu quo.
Judgment affirmed.
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