
    *Stephen Higby v. Geo. F. Whittaker and Sardis Burchard.
    Examination of, and decisions upon the evidence.
    A purchaser of land, who has paid a very small part of the purchase money, and delays payment of the principal sum long after it is due, can not be aided in equity by a decree for a specific performance.
    In such case, where the purchaser has occupied the land sold, the fair rent of which is equal to the actual payment, the vendor may rescind without offering to refund the amount received.
    Reserved in Sandusky county.
    The bill of complaint states, that the defendant, Whittaker, on. September 10,1833, contracted to sell to the complainant a certain tract of land, in the county of Sandusky, lying on the Sandusky river, in the Whittaker Reserve, and called the “ Orchard Farm;” also, 90 acres in the same reserve, and lying northeast of the-aforesaid tract, the whole to contain 347 acres; for which the complainant was to pay $3,000 in equal annual installments; the first payment to be made on April 1, 1836, with interest on the whole sum.
    The complainant avers, that he has paid upward of $500 on the contract, and been in the possession of the land since the purchase-He charges Whittaker with fraudulent misrepresentation in the quantity of the land, and that it was ascertained by a survey, subsequently made, that it fell short of the quantity represented 117 or 118 acres. That at the time of the purchase, Whittaker had sold the last-named quantity, which he concealed from the complainant, but took him over the whole, and represented it as belonging to himself. That the 117 or 118 acres was a valuable part of the farm, and intended to supply it with wood and timber, and deducting it from the 347 acres has materally lessened the value of the whole.
    The complainant also states, that the defendant, Whittaker, refuses to receive payment, deducting a reasonable compensation for the deficiency,- or to purchase in, and convey the same land contracted for; but has commenced a suit in ejectment, to recover possession of the land occupied by the complainant, and that Burchard, the other defendant, has since purchased of Whittaker, with full knowledge of the complainant’s rights.
    
      The bill prays that the damages sustained by the complainant, may be ascertained, for the deficiency, and deducted from the amount of the consideration; that any balance due may be paid into court, in a reasonable time, and that, on the payment thereof,, that Burehard may be decreed to convey to the complainant, and that further proceedings in the action of ejectment may be enjoined.
    The defendants have both answered. Whittaker admits the ^contract with the complainant, and his possession; but denies, absolutely, that he represented himself as the owner of any land he had previously sold; or that he contracted any such-to the complainant. He avers he was the owner of more than sufficient land, in the Whittaker Reserve, to fill his contract with the complainant, and that he was, at all times, anxious to receive-his money, and fulfill, on his part, but that the complainant failed and refused to make the payments, as they became due; that he-commenced an action of ejectment, but finding the complainant disposed to be litigious, and having become embarrassed, in consequence of not receiving his money, he was compelled to sell, at-a. great sacrifice, to Mr. Burehard, and, on March 21, 1835, conveyed to him by deed, and assigned to him the complainant’s, bond, for the payment of the land. He admits the payment of $492.
    Burehard admits his purchase, with full knowledge of the complainant’s contract and possession. He states that on April 1,1836, and on the succeeding day, all the installments being due, he demanded payment of the complainant, and, on that condition, offered him his land, and a conveyance, in all things.in pursuance of his contract with Whittaker ; but that the complainant wholly refused to make payment, and he thereupon notified him that he should cancel the contract, and should not afterward convey. To these answers, there is a general replication.
    Boalt and Seaman, for the complainant,
    cited 9 Cranch, 173; Sug. on Vend. 262, note; 3 Cranch, 270; Cox’s Dig. 128, sec. 13; 12 Wheat. 574; Cox’s Dig. 141, sec. 162; Chit. Eq. Cas. 61, 49;. 17 Ves. 349; Chit. Eq. Cas. 46; 9 Johns. 470; Chit. Eq; Cas, 221, 222; Amer. Ch. Dig. 518, tit. Agreement, secs. 55, 359; 5 Cranch, 262.
    Coeeinbert, for the defendants,
    cited 7 Ohio, pt. 2, p. 97.
   Judge Wood

delivered the opinion of the court:

Two questions only arise, in this case, necessary for consideration. The first is,( whether Whittaker was guilty of fraud, as charged in the bill? The second, whether Burchard, under the facts disclosed, could rescind the contract, without refunding to the complainant the purchase money admitted by the answer to have been received ? The fraudulent misrepresentation complained *of, is unequivocally denied in the answer, and must therefore be proved by the testimony of more than one witness. The evidence of Isaac Harris and David Camp are alone relied upon to establish that fact. The former testifies that he witnessed the contract for the sale of the land. That on the day it was executed, Whittaker showed the complainant and the witness, the land contracted for, and called the “ Orchard farm,” and ’said the south line continued east, straight to the river, and that the north and west lines were straight. If this representation was made, it was certainly untrue, for exhibit “D” shows a conveyance, within the lines pointed out, on the north side, and west of the Port Clinton road, which divides the farm, of 100 acres, to Nicholas Mattia; and exhibit “E,” a conveyance of 50 acres, on the south side, to Brown. Both conveyances executed before the complainant purchased, and which left the lines of what remained unsold, on the north, south, and west, anything else but straight. If Whittaker was showing the lines of the reserve, however, within which the farm was located, and not the lines of the farm, what he said was strictly true. We are inclined to believe this was the fact, and that he was misunderstood by Harris. We arrive at this conclusion, from the evidence of Mattia, to which we shall hereafter refer.

Camp swears that he surveyed the land; that both the complainant and Whittaker were present. He says that the complainant objected to the crookedness of the lines of the “ Orchard farm,” and Whittaker replied, “ I thought you understood it." This is the testimony to prove the fraud! an act, which, if not legally, is morally criminal, and tends to the degradation of any individual, in the opinion of every upright and virtuous man. Does it establish if ? If Harris is to be believed, there is the testimony of him, only, against the oath of the defendant, and the complainant must throw .some other circumstances into the scales, to incline them in his iavor. Is the evidence of Camp sufficient? Wo think not. The reply of Whittaker, “ I thought you understood it,” can not be tortured into the admission of a fraud, by any legal rule. The testimony of Mattia, however, settles this point, beyond controversy-He swears, before the complainant purchased, he, the witness; showed him the lines of the “ Orchard farm,” and the lines of the other tracts, sold to himself and Brown, by Whittaker, and told him the price paid, to which the complainant replied, it was cheap enough. The fraud, *not being made to appear, the complainant is entitled to no abatement of price.

2. Could Burchard rescind the contract? $492 only had been’ paid, when the last installment fell due. Nearly $3,000, including-interest, remained. In Remington v. Kelley et al., 7 Ohio, 103, it is said, “where there has been a default, unless the same has been-occasioned by circumstances not within the control of the party, he can not well complain that the opposite party should not hold himself bound by a contract, of which he, himself, is utterly regardless. That such default is, at least, equivalent to an express-assent to a rescission of the contract, and may be so considered, unless acquiesced in by the opposite party.” In this case, the whole purchase money was due. Burchard had succeeded to the rights of Whittaker, and stood in his shoes. He demanded payment,, and, on that condition, offered to give up the complainant’s bond, and to convey, in all things, according to the contract of,his co-defendant. Payment being refused, he expressly notified the complainant he should thereafter consider the contract as rescinded. The complainant has showu no one circumstance to excuse him, and relieve him in equity. The law requires some positive act by the party who would rescind, which shall manifest such intention, and put the opposite party on his guard, and it then gives a reasonable time to comply; but it requires eagerness, promptitude, ability, and a disposition to perform, by him who-would resist a rescission of his contract. Burchard manifested his intention in express terms. The complainant satisfied himself with sleeping on his rights, and to the present time has never-offered to perform. It is very evident he had no such intention-.. Several witnesses swear that he often so expressed himself, and as - often admitted his entire inability. If prosecuted, he threatened a “ seven years’ litigation,” and to reimburse himself for the expense - by keeping possession of the property and receiving the profits-. This trifling indisposition of the complainant, his want of intog— rity and intention to pay for the property, and his utter inability to do it, unquestionably give Burchard the right to put an end to •the contract.

But it is said, before the contract can be rescinded, the money paid must be refunded. Such, as a general rule, is correct. But in this case, it is conclusively shown that the complainant is •equitably indebted to the defendants for the use, rents, and profits *of.tbe property, to a much larger amount than he has paid. Justice would, in such case, seem to require that the amount paid by the complainant should be considered as so much paid for the rent and profits, and, as the case and parties are all before us, there would be a propriety in decreeing against the complainant •for the balance which will still be due. The whole controversy would then be at an end. This is not sought by the defendants, however, and we will, therefore, leave the parties to settle such portion of the rents and profits as remains due, in another tribunal.

We are aware that a number of cases maybe found where lapse of time has not been considered a sufficient objection to a specific execution of the contract. Without a close examination, this has 'led to an opinion that where a contract for real property is once •obtained, the purchaser acquires rights which may be enforced in equity to an indefinite and unlimited period, however regardless such purchaser may be of the conditions of such contract. Nothing can be more erroneous, and nothing, certainly, more repugnant to sound morals, or destructive to punctuality. The case of Gibbs v. Champion, 3 Ohio, 325, has been supposed to sustain such position. If carefully examined, we think no such inference can be drawn from it; hut it will be found perfectly consistent with, the more modern cases of Scott v. Field and Remington v. Kelley 7 Ohio. In Gibbs v. Champion, a specific execution of the agreement was decreed, because Champion had held on to the contract, .and done no positive act manifesting an intention to take advantage of the non-performance of Gibbs, and the court, from that and other circumstances, thought he intended to waive such default, and the contract was considered as subsisting. There is not an intimation, in that case, which fell from the court, that denies the power of Champion to have put an end to his agreement with Gibbs, had he sought to do so.

On the whole, we áre clearly of the opinion, in this case, that the bill should be dismissed at the complainant’s costs. -

Judge Lane did not sit in this cause.  