
    H. J. Frederick, v. R. L. Davis and Millie C. Davis, Appellants.
    Vendor and vendee: rescission. A vendor in a contract for the sale of real estate containing no forfeiture clause, who rescinds because of failure to make payments as agreed, must return the payments already made.
    
      Appeal from Jefferson District Court.— IIon M. A. Eoberts, Judge.
    Thursday, February 14, 1907.
    Suit to recover back money paid on the purchase price of land. Trial to the court, and judgment for the plaintiff. The defendants appeal.—
    
      Affirmed.
    
    
      Leggett and McKemey, for appellants.
    
      K. B. Smith, for appellee.
   Si-ierwin, J.—

The plaintiff and the defendants entered into an oral contract for purchase and sale of certain land at the agreed price of $3,300. The plaintiff paid $300 in cash, but afterwards failed to make further payment, as he had agreed, and thereupon the defendants rescinded the contract, returned to the plaintiff the notes which he had given them for a part of the price, and refused to return the money paid. It is the rule in this State that a party may not rescind a partly executed contract without placing the other party in statu quo. And the rule is applicable to the sale of real estate when there is no forfeiture clause in the contract. Anderson v. Haskell, 45 Iowa, 47; Burge v. Railroad Co., 32 Iowa, 101; Downey v. Riggs, 102 Iowa, 92; Myers v. Townsend, 103 Iowa, 572. The appellants rely on Downey v. Riggs as an authority for their claim that the plaintiff herein cannot recover. But in that ease the plaintiff was not only at fault, but, according to the allegations of the answer, himself rescinded the contract. The case came to us on a ruling sustaining a demurrer to the answer, and we held the answer good. In the instant case the defendants rescinded because of the fault of the plaintiff, and, having done so, he must return the money received.

The judgment is affirmed.  