PiNNEY, J.
It may be inferred, perhaps, from the facts above stated and contained in the complaint, although not expressly so alleged, that the deed to the plaintiff contained a covenant that the grantors were lawfully seised in fee at the time of its delivery. It is alleged that the deed was a warranty deed, and there is no claim that a valid title to the lands did not pass by it to the plaintiff. The stipulation or *381covenant for the delivery of possession of the premises to the plaintiff on the 1st of April, 1895, was executory; and it seems that, the lease to Alvina Decker having expired, the plaintiff’s grantors, after the execution and delivery of their deed to the plaintiff, renewed said lease, or rented and leased said premises again to her, for the term of one year, and at or before the time fixed for the delivery of the premises to the plaintiff. We think that, in view of the facts stated and the relief prayed, the complaint must be regarded as an attempt to set forth an equitable cause of action for rescission, although judgment was demanded for $2,200 and interest as well as for the equitable relief specially prayed for. The two kinds of relief are absolutely inconsistent, and the plaintiff was bound to elect either to abide by the covenant in the •deed, or to claim a rescission in toto. The circuit judge properly held, we think, that the action intended was an equitable one for rescission. The complaint states facts not material to a legal action for the recovery of a mere money judgment, but which are pertinent to a claim for equitable relief; and she prays for such, by rescission of the sale and conveyance of the premises and the cancellation and delivery up of securities. The nature of the action must be determined by the prayer for relief. Gillett v. Treganza, 13 Wis. 472.
There is no question as to the validity of the title conveyed to the plaintiff, and the mere failure of the grantors to deliver possession of the premises at the time specified in the deed would not, of itself, justify the plaintiff in suing for rescission. The contract had been wholly executed on her part, and she had received a valid title and taken a covenant of the vendors that they would deliver possession of the premises conveyed on the day specified, and their failure to perform was partial only. The general rule is that, to justify a rescission, the failure of the opposite party to perform must be total, so that the object of the contract *382shall have been defeated or rendered unobtainable by reason.! of the misconduct or default of the other party. 2 Warvelle, Vendors, 850. “For partial dereliction and non-compliance in matters not necessarily of the first importance to the object of the contract, the party must seek his remedy upon the stipulations of the contract itself.” Weintz v. Hafner, 78 Ill. 27; Selby v. Hutchinson, 9 Ill. 319. In the case of Board of Sup’rs of Douglas Co. v. Walbridge, 38 Wis. 191, it was said: “The application to a court of equity for the-rescission, cancellation, or delivering up of agreements and. securities is not founded upon an absolute right, but is-rather an appeal to the sound discretion of the court, which,, in granting or refusing the relief prayed, acts upon its own notions of what is reasonable and just under all the surrounding circumstances. While we are to understand that' the interference of equity in these cases is a matter of mere-, discretion, this is not an arbitrary and capricious, but a* sound and reasonable, discretion, secundum wrbitrium boni judicis. 1 Story, Eq. Jur. (12th ed.), § 693; Willard, Eq. Jur.. (1st ed.), ch. 4, § 3.” It is not alleged that there was any fraud or misrepresentation, and it does not appear but that the plaintiff has a complete and adequate remedy at law for damages on the covenant in the deed, f'or failure to deliver possession at the stipulated time. It is not averred that both of the grantors in the deed were insolvent. Had. the plaintiff sued on the covenant, her damages would have-been the value of the use of the premises for the time she-had been deprived of such use. Fritz v. Pusey, 31 Minn. 368.
It appears that the lease to Alvina Decker, under which she held the premises against the plaintiff, was made or renewed after the vendors had conveyed their title to the plaintiff, and when they had no power or capacity to grant such lease. She could not be considered as a purchaser under it, without notice. It was not a conveyance, within sec. 2242, R. S., and she could not acquire any better right. *383to hold the premises against the plaintiff than the vendors had; and manifestly they had no right to hold, as against their own deed and the covenant to deliver possession to-the plaintiff.
The complaint did not, we think, state facts sufficient to-constitute the cause of action relied on.
By the Court.— The judgment of the circuit court is affirmed.