
    James E. Jordan, plaintiff in error, vs. Benjamin F. Rhodes and Azariah Doss, defendants in error.
    If A. sells land to B. giving him a bond fov titles, and subsequently conveys to C. who has full knowledge of the prior sido, ho is in no better condition than A., but is affected with all the equity existing between the previous parties.
    Notwithstanding time is of the essence of the contract, it may be waived j and a subsequent offer to fulfill the contract, and urging a compliance on the oth. er side, instead of treating the contract as at an end, amounts to a waiver.
    In Equity, from Randolph county. Decision by Judge Kiddoo, at May Term, 1857.
    The fact of this case, are fully stated in the opinion of the Court.
    Hood & Robinson, for plaintiff in error.
    Douglass & Douglass, for defendants in error.
   Lumpkin J.,

By the Court delivering the opinion.

In February, 1852, Doss sold Jordan, lot of land No. 256, in the 6th district of Randolph county, for $350; §175 of which was to be paid the next Christmas ; and the other half the Christmas thereafter the whole to bear interest from date, if not punctually paid. In February, 1853, the purchase money being unpaid, the contract was renewed. Doss took Jordan’s note for §423 25, payable the 25th of December next, afterwards, and gave him a new bond for titles, upon condition, that the pripe was paid punctually,, without trouble or expense to the vendor. J ordan remained in possession of the land under this purchase, having originally been found upon it as a squatter, when the trade was made.

This last contract was not fulfiled. But notwithstanding the failure on the part of Jordan, Doss some years thereafter,, prepared a deed and tendered it to Jordan; and urged him to pay the purchase money. Failing to do so still, Doss sold the lot of land to Rhodes for §500 ; $300 of which has been paid, and the balance of $200, is still owing. The inference is from the proof, that Doss at the timo he sold to Rhodes, not only made him a warranty deed to the land, but also turned over to Rhodes, Jordan’s note.

To the April Term, 1855, of the Superior Court .of Randolph county, Rhodes brought his action of ejectment against Jordan, to get possession of the land; and at the ensuing October Term, a suit was brought in the name of Doss against Jordan, upon Jordan’s note. It is not pretended that it was the intention of either Doss or Rhodes to recover the land, and likewise Jordan’s note. But the idea was, that if the ejectment failed, payment of the note should be enforced.

Jordan now files his bill to enjoin these proceedings, and offers to pay for the land, provided he can got titles, which he prays to have made under a decree of the Court. The injunction was granted by the -Court, but upon the filing of the answer, the Court upon motion, dissolved the injunction, and it is to reverse this interlocutory order, that this writ of error is prosecuted.

We had best in the first place, disentangle this case of the complicity growing out of the re-sale of the land by Dess to Rhodes. Rhodes bought with full knowledge of the previous sale to Jordan. Jordan was not only in possession of the land, which should of itself have put Rhodes upon enquiry as to the nature of his tenure ; but Rhodes admits, that he saw the note given by Jordan to Doss, which note states upon its face, that the consideration of the note was the price of this lot of land : and, that is not all, Rhodes says that Doss told him of the previous sale.

The question then is narrowed down to this; conceding that time, is of the essence of this contract, and more is not asked; what are the relative rights of Doss and Jordan ; for we drop Rhodes altogether, and treat the transaction as though Doss and Jordan were alone the parties to it. In law, it is the same thing.

Doss then, some twelve months after Jordan’s last note fell due, tendered Jordan a title, and insisted on the payment of his note. So far from demanding a rescisión of the trade or treating it as at an end, by reason of the failure of Jordan 4o comply punctually with his agreement, he not only tenders a title, and urges the payment of the purchase money, but he subsequently turns over Jordan’s note to Rhodes, and upon which an action has been instituted.

The remedy of Boss was three-fold. To sue in ejectment, and thus force Jordan to pay the purchase money, or be evicted from the premises ; go into equity and obtain a decree for the rescisión of the contract by being put into possession and delivering up the bond for titles, and the note of Jordan to be cancelled ; or sue and obtain a judgment upon íhe note and have the land sold under the statute, to pay the debt. • In the prosecution of either of these remedies, Jordan would have had the right to have arrested the proceeding by paying up the purchase money; and this he offers now to do.

We hold then, that the injunction should have been retained ; and that upon the payment of the purchase money into Court, Jordan will be entitled to have a conveyance executed, either from Rhodes or directly from Doss; and the deed from Doss to Rhodes cancelled.

Judgment reversed.  