
    Hurst vs. Means.
    Sale of Land. Vendor refusing to make title. Action. If the vendee of land, to whom the vendor agrees in writing to sell and convey, enter into and retain the possession of the land until the time of bringing his action, he cannot, upon the refusal of the vendor to make title, maintain an action for money had and received, against the vendor for so much of the purchase money as he has paid to him under the agreement. Such action can only be maintained when the agreement ¡3 void, or the vendee takes no benefit under it.
    This was an action of debt, commenced in the common law and chancery court of the city of Memphis. At the March Term, 1852, HaeRis, Judge, presiding, there was judgment for the defendant, and the plaintiff appealed in error.
    E. M. Yeegee, for plaintiff in error,
    argued: A party who contracts to sell land, should have the legal title, or the means of enforcing it. If he has not, the vendee has a right to disaffirm the contract; and if he has paid any part of the purchase money, he can receive it back in an action for money had and received; Pvphi/n vs. James, 1 Humph., 325; Olarlce vs. looke, 11 Humph., 300.
    
      And in case be elect to disaffirm it, be need not perform, or tender performance on bis part; Clarice vs. Locke, 11 Humph., 300.
    So, when tbe vendee bas paid any part of tbe purchase money, and tbe seller does not complete bis agreement, and tbe contract is totally unexecuted, tbe vendee may disaffirm it ah initio, and bring an action for money received to bis use; Sugden on Tendors, 234; 1 Cain’s Eep., 47; 5 Johns., 85.
    I am strongly inclined to tbe opinion, that tbe vendor must have the right to enforce tbe legal title, at tbe time be contracts to sell. It will not do that be bas a title bond to convey to him, upon tbe payment, by him, of tbe purchase money, no part of which has been paid. Under such circumstances, he has not tbe means of enforcing tbe legal title. It is a mere attempt at speculation upon other person’s property, in which be bas no right or interest; tbe doing of which is strongly reprobated in tbe case of Pipkin vs. James, 1 Humph., 325. And in 6 Barn. & Cress., 31, where a person who bad contracted for the ■ purchase of an estate, but bad not obtained a conveyance of it, sold it with a stipulation to make a good title, which be was unable to do, as bis vendor refused to convey, Lord Tenderdon said: “He should not have taken such a step, without ascertaining that be would be in a situation to make some title; and having entered into a contract to sell, without tbe power to confer, even .the shadow of a title, he must be responsible for tbe damage sustained by a breach of bis contract.”
    And, inasmuch as tbe vendee bas bis election to sue for damages, for a breach of tbe contract, thereby affirming it; or for the recovery of tbe purchase money be bas paid, thereby disaffirming it, it would be but reasonable to hold, that in the above, and in all cases, where the vendor sells without having a legal title, or being in a situation to make some title, he would be liable in an action for money had and received, although he had made a contract to purchase. The true doctrine undoubtedly is, that he, the vendor, at the time he contracts to sell, should have it in his power to compel a conveyance to himself, and transmit the right to his vendee, as would be the case, where he had paid the purchase money. See Sugden on Yendors, 207, 208, and cases cited.
    SwayNE and SullivaN, for defendant in error,
    argued: Plaintiff has not disaffirmed his contract with Means; but, on the contrary, by taking possession under the contract, and by retaining the possession up to the 'present time, he has elected to affirm the contract; and having done so, he must sue on that contract; 2 Saunders’ PI. and Evidence, title, Vendee vs. Vendor, p. 908, and 910; Chitty on Contracts, 711, 742, 743; 1 Ohitty’s PL, p. 355.
    Where there is a special contract subsisting, the plaintiff must sue on it. In this case, there is such a contract in full force. The plaintiff is in possession of the land, under the contract, and has, for ten years, had such possession, receiving the rents and profits. Tins is, itself, an affirmance of the contract; 5 East, 449; 6 Cowen, p. 1; Chitty on Con., 188; 5 Humph.. 562; 2 Greenleaf’s Ev., 114; 4 Blackford, 515.
    An action of indebtatus assumpsit will lie to recover back the consideration paid on a void conbixiet, for the sale of real estate, but it will not lie to recover back the consideration money, when there is a special written contract subsisting. The case of Pvplcm vs. James, 1 Humph., was a parol contract; it was void, and in such case the action may be- sustained without a rescission, because there is no contract to rescind. The case of Gwen vs. Loahe, in 11 Humph.,, was covenant on the contract; thereby affirming it. It was not similar to this case.
   TotteN J.,

delivered the opinion of the court.

The action is debt for four thousand five hundred dollars, alleged to be money had and received by defendant for the plaintiff’s use. The defendant pleaded nil debit. There was judgment for defendant, and plaintiff has appealed in error to this court.

The facts are these: “In October, 1842, the defendant sold to plaintiff a section of land in Marshall county, Miss., for three thousand five hundred dollars, payable in three instalments. At the same time, the plaintiff was admitted into possession of the premises, under the contract, and had so continued ever since, by himself or tenants, so far as appears in the record. He made considerable payments on his contract; the precise amount does not appear. He offered to pay the balance if defendant -would make title to the land. The legal title was not in defendant but in the trustees of a land company, with whom defendant had made an agreement, in writing, for the purchase of said land. He had not, and has not paid the purchase money to said trustees, who, of course, refused to make title; and so defendant was not in condition to make title to the plaintiff, when it was demanded of him, as before stated. The object of the suit is, therefore, to recover from the vendor money paid to him on an agreement for the sale of land, upon the ground that he has failed to execute the agreement, and is unable to execute it, for want of title in himself, or the means of procuring it of the person in whom it is vested.

The rule on this subject, is stated in Clarke vs. Locke, 11 Humph. R., 300. If the vendor, on a proper demand made, refuse, or be unable to execute his contract, the vendee may bring his action thereon for the recovery of damages, thereby affirming the contract; or, at his election, may disaffirm the contract áb iniUo, and sue for money had and received to his use.

In the present case, the vendee has elected to disaf-firm the contract, and to sue for a return of his purchase money. This, it was competent for him to do; and the question is, do the facts in this case amount to a disaffirmance and rescission of the contract ? We are of opinion that they do not.

It is a valid contract in writing, and was in part executed by the vendor; for, he placed the vendee in possession under it. This possession has not been restored, but continued in the vendee at the time this suit was instituted. The vendee pretends to disaffirm and rescind the contract, and yet holds the possession, a benefit, under it. It is in this respect, that the contract is not rescinded; and the action can only be maintained upon its absolute and total rescission. It would be unreasonable and unjust’ to permit a purchaser to retain the possession and use of the thing purchased, and yet to recover back the consideration as for a defect of title. The action for money had and received, is, in its nature, equitable; and it cannot be maintained upon a principle so Unequal and unjust. When a contract is properly rescinded, tbe parties are placed in statu quo; 5 East, 449; 15 Petersd. Ab., 301, note; 2 Phil. Ev., 89; Weston vs. Downs, Doug. 23; Ellett vs. Maynard, 5 T. R., 87; Towers vs. Burrett, 1 Term. R., 133; 6 Blackford’s R., 22; 2 Saund. on Pl. & Ev., 908.

Where, however, the contract is void in itself, no act of rescission is necessary, in order to maintain the action for money had and received upon it. No right or duty can be predicated upon a void contract; it is the same as if it had not been made. Therefore, if a party enter upon land and pay money under a parol contract, for its purchase, he may recover it back, by action for money had and received for his use, without restoring the possession or doing other acts to rescind the contract; for, the contract never had a legal existence, and, of course, no action could be maintained upon it; Walker vs. Constable, 1 B. & P., 306; Beckerman vs. Kuykandol, 6 Blackf. R., 22; Pipkin vs. James, 1 Humph. R., 325.

But here, the contract being in writing, was valid as between the parties, and the possession was retained by the purchaser. In such case, the present form of action cannot be maintained.

Let the judgment be affirmed.  