
    CASE 50 — PETITION EQUITY —
    JANUARY 28.
    Russell vs. Shively, &c.
    APPEAL, FROM MARION CIRCUIT COURT.
    The circuit court erred in rescinding the contract when an exhibition of a perfect title was required, and a rescission was not asked for. The court ought to have held the case up for a further experiment as to title, and ought also to have required the vendors to show their title, and have given time, if necessary, for perfecting it; and, if they could not present a sufficient title, after such probation, the vendee should elect to take their conveyance with warranty or rescind the contract.
    Russell & Avritt, For Appellant,
    CITED—
    
      Civil Code, secs. 36, 18, 29.
    .2 Parsons on Contracts, p. 562, et seq., note e, 562.
    1 Marshall, 167.
    
      yV. B. Harrison, For Appellees.
   JUDGE ROBERTSON

delivered the opinion of the court:

As the appellant, Russell, required, as he had a right to do, an exhibition of a perfect title, and did not ask for a rescission of the contract, the circuit court erred in rescinding it; but ought to have held the case up for a further experiment as to title, and ought also to have required the appellees to show their title, and have given time, if necessary, for perfecting it; and, if they could not present a sufficient title, after such probation, the appellant should elect to take their conveyance with warranty or rescind the contract.

, Wherefore, the judgment is reversed, and the cause remanded for further proceedings. .  