
    Robert Sims vs. Josiah Boaz.
    • A purchaser of land, who has paid part of the purchase money, and is to receive title on payment of the residue, cannot recover back from his vendor what he has paid, unless he shows that he stood ready, and offered to pay the balance according to his contract, or else that the contract is rescinded.
    S. Sold land to B., received part of the money, and was to make title on payment of the residue ; a former vendor of the land afterwards filed a bill against his vendee, S., to obtain a sale of the land, to pay the purchase money due him by his vendee ; he paid S. twenty-five dollars to make no de-fence ; S. made none ; the decree was obtained, the land sold, and the purchaser put in possession ; B. sued S. to recover back the purchase money paid by him. Held, that the acts of-S. amounted to a rescission of the contract on his part; and thus gave B. a right to recover his money back.
    In error from the circuit court of Holmes county; Hon. Morgan L. Fitch, judge.
    
      Josiah Boaz sued Robert Sims in assumpsit, to recover back $200 on this contract: “ Received, December 28,1839, of Josiah Boaz, two hundred dollars, which is in part payment for the purchase of a tract of land which I, Robert Sims, have sold him; and will make him a good lawful title to, when the trade is closed, by the payment of three hundred and twenty dollars, and his note for three hundred arid • twenty dollars more, with ten per cent, interest added, which sums would make six hundred and fifty-two dollars in all. R. Sims.”
    The defendant plead non-assumpsit.
    On the trial, besides the above written agreement, the plaintiff read a deed to the land sold to him, from Robert J. W alker and Thomas Bernard to Wiley Harrington ; the deed containing the statement that a lien was reserved until the purchase money was paid. It was proved, that afterwards Sims purchased the land at sheriff’s sale, under a judgment against Harrington, and sold the land to plaintiff. That Walker and Bernard, for the use of Hoskins, filed their bill against Harrington and Sims, to subject the land to the payment of the purchase money due by Harrington; and that Hoskins gave Sims $25 not to defend the suit, which Sims accepted, and made no defence; Hoskins bought the land under the decree of sale, and was in possession of it.
    The defendant then asked the court to instruct the jury, that “ unless Boaz tendered the balance of the purchase money and the note, specified in the contract, the law was for the defendant.” This ivas refused. The jury found for the plaintiff, a new trial was moved for, and also refused. Exceptions were sealed, and this writ of error sued out.
    
      H. W. Brown, for plaintiff in error.
    I. Boaz could not sue for and recover the money already paid, until he put Sims in default, by paying or tendering the balance of the purchase money and his promissory note, and then demanding a good title. If a good title was refused or not made, his right of action might then accrue, and not till then.
    2. There does not appear to be any fraud in the transaction, and there were no false representations made by Sims in relation to the title; and, for aught that appears, the contract was fair and bona, fide between the parties at the time of the trade. If Boaz had paid the money, and given his as note agreed upon, it would have enabled Sims to have paid off and removed the incumbrance, if any existed. And suffering the decree to be rendered and the land sold, may have been for the express purpose of procuring a good title, by a purchase from Hoskins; at any rate, he should have made a tender of the same. See 20 Johns. R. 27.
    3. When a bond is given to make title upon payment of part of the purchase money, it is incumbent on the obligee to perform, or offer to perform, his part of the agreement, before he is entitled to a deed or a rescission of the contract. Ayres v. Mitchell, 3 S. & M. 683.
    When averments are, as is the case at bar, mutual and dependent, and have been violated by any party thereto, and the other desires to absolve himself therefrom, he must offer to comply with his part of the contract before he can do so. Hines v. Baine et ál., 1 S. & M. Ch. R. 630. •
    It is now well settled, that even in the case of a parol or verbal contract for the purchase of land, where the vendee paid or made a deposit of the purchase money, that he must make a demand of the deed, and a refusal upon the part of the vendor, before he can sue for and recover back the amount.
    
      Brooke, for defendant in error.
    1. Under the circumstances of this case, an action for money had and received, will lie. Morrison v. Ives, 4 S. & M. 652; Comyn on Con. 304, 305, 307, 308; 1 Camp. 337; 5 Taunt. 625 ; 6 Burr. 2639 ; 2 Sand. PI. and Ev. 674; 6 T. R. 606.
    2. The instruction asked for by the plaintiff in error was properly refused, because there was no evidence upon which to prosecute it. The doctrine usually applicable to title bonds, in reference to tender of purchase money, &c., does not apply here. The instrument here shown is not a title bond, but a mere receipt for money, —money, which the evidence shows, was consequently withheld from the defendant in error. The bill of exceptions does not state that it contains all the evidence given before the court below. This court, then, cannot say what was the whole state of facts which might have justified that court in refusing the instruction asked, even did the evidence, as shown here, fail to do so. But upon the whole record, as exhibited, it is apparent that justice was done, and there is no necessity fox-disturbing the judgment.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, brought to recover a sum of money, which had been paid upon the purchase of a tract of land, with an agreement that title should be made upon payment of the balance. The land was afterwards sold under a decree in favor of a previous vendor, for the balance unpaid upon that contract. Sims, .the plaintiff in error, was a party to the suit in equity, and agreed for the sum of $25, which was paid to him, to make no defence. He made none, the decree was rendered, the sale made, and the purchaser under that sale is in possession.

On the trial, the counsel of Sims asked the court to instruct the jury, that unless the plaintiff prove that he had tendered the balance of the purchase money, the law was for the defendant. This instruction was properly refused.

A purchaser cannot recover back money paid, unless he shows that he stood ready and offered to pay, according to his contract, the balance, or shows that the contract has been rescinded. Green v. Green, 9 Cow. 49; Hudson v. Swift, 20 Johns. 24; Morrison v. Ives, 4 S. & M. 652; Sugd. Ven. 279.

In this case, the acts of the defendant clearly amounted to a rescission on his part. By suffering the land to be sold under a previous lien, and receiving a sum of money for failing to defend the suit, he manifested an undoubted .intention to abandon the sale to Boaz. This gives him a right to have his money back.

The judgment is affirmed.  