
    James Beaty vs. David Harkey.
    A stipulation in a contract, that in case the vendor cannot convey, or if the pur- ■ chaser shall fail to pay on the appointed day, then the contract shall be void, does not enable either party to vacate the agreement, by failing to perform his part of it.
    (^sustaining- a demurrer to the defendant’s plea, the judgment of the court should be respondeat ouster.
    
    In error to the circuit court of Monroe county.
    This was an action of debt, founded on two writings obligatory ; the declaration was in the usual form. The pleas are substantially set out in the opinion of the court.
    Gholson, for plaintiif in error-.
    It is contended, for the plaintiff in error, that the court below erred in sustaining the demurrer to his plea, that the demurrer should have been overruled7 and judgment entered for the defendant below.
    This question is to be decided on the legal effect of'the contract set out in the plea, and admitted by the demurrer. By that contract it is insisted, that on the failure of the defendant below to pay the notes at maturity, the original contract for the sale of the lots was extinguished and merged into the contract set out in the plea, and that the remedy of the plaintiff, Harkey, was exclusively on the latter contract, by which he became entitled to a rent of fifty dollars a‘ year for his lot. The very expression that rent was to be paid, shows that the relation of vendor and vendee was changed, by the latter contract, into that of lessor and lessee.
    The contract also contains the expression, that in the event he-should be compelled to take the lot back. Now what contingency could be referred to, except the contingency before mentioned'? — the not paying the notes at maturity.
    The only stipulation in the contract which raises a doubt is, that providing that Beaty should also pay interest on the notes, after maturity, at the rate of eight per cent. But this stipulation, when properly considered, rather strengthens, than otherwise, the view taken above. If the contract of sale was not to end, there would be no use or sense in this stipulation ; for the law, in that event, would give the interest, as matter of course. But the contract of sale being extinct, and the notes cancelled by the latter contract, this stipulation is inserted, as additional rent, or as a penalty on the defendant below, for continuing in possession, after he had failed to pay the notes at maturity.
    A contrary construction would render the contract set out in the plea an exceedingly usurious one, on the part of the plaintiff below; he would be entitled to demand his purchase-money, four hundred dollars, fifty dollars a year, during the continuance of the defendant’s possession, and also interest, at the rate of eight per cent.
    Upon a consideration of the whole contract, as set out in the plea, it is submitted, that it was a competent bar to the recovery of the notes sued on, and that judgment should have been rendered on the demurrer, in favor of the defendant below; and that this court, pronouncing such judgment as the court below should have done, will now enter judgment in favor of the defendant below. 6 How. 519.
    If, however, this court should be of the opinion, that the court below was correct in sustaining the demurrer, still the judgment, as entered, was manifestly erroneous, and must be reversed. A final judgment was rendered against the defendant below, when he was entitled to a judgment of respondeat ouster. How. & H. 615, sec. 8;
   PER Curiam.

To an action founded on two writings obligatory, amounting, in the aggregate, to four hundred dollars, the plaintiff in error pleaded specially, in substance as follows: That on the day of the date of the notes, the defendant in error and the plaintiff entered into an agreement in writing, under seal, by which, after reciting that the defendant in error had sold to the plaintiff in error a lot of land in Aberdeen, taking therefor the notes sued on, it was agreed between the parties, that if the plaintiif in error should fail to pay the notes, at maturity, he should pay to the defendant in error rent, for the time he should be in possession of the lot, at the rate of fifty dollars a year, and that he should also pay interest on the notes, from the time they should become due, at the rate of eight per cent, per annum; and also that the vendor should pay for any improvements, which the vend'ee might put on the lot, the value to be settled by arbitrators, in case the vendor should be compelled to take it back. The plea concludes, by averring a failure to pay the notes at maturity. The plaintiif below demurred, and the court sustained the demurrer, and gave a final judgment, and the question is, whether the demurrer was correctly sustained.

, The plea is not good, unless the agreement is to be construed as operating so exclusively in favor of the plaintiif in error, as to leave it entirely discretionary with him, to aifirm or dis-affirm the contract. That such is its legal effect, or that it is expressive of any such intention, is a position entirely unwarranted. It is quite apparent, on the contrary, that the vendor looked to his own security. Ifamounts to nothing more than an agreement to convey, on payment of the purchase-money. The single question is, did the vendee agree to purchase, and the vendor agree to sell? Is it a contract binding on both parties ? It surely could not be pretended, that the vendee could not have coerced a specific performance, on payment of the purchase-money; and if that be true, then the vendor is entitled to his remedy at law; for all such contracts must have mutuality. The agreement is, in substance, that if the vendee should fail to pay the purchase-money, then the contract of sale should be void. A stipulation in a contract, that in case the vendor cannot convey, or if the purchaser shall fail to pay on the appointed day, then the contract shall be void, does not enable either party to vacate the agreement, by failing to perform his part of it. Sugden on Vendors, 44. In such cases, the purchaser may avoid the contract, if the seller do not make a title, and the seller may avoid it, if the purchaser do not pay the money; but the purchaser cannot say, “I will not pay,” and thereby avoid the contract. The default of one party confers on the other the right to rescind. Sugden on Yendors, 261. The reservation of rent did not change the contract into a loan; it was still a contract of sale. Ibid. 260. The agreement to pay interest, evidently looked to a confirmation of the contract, and not to a rescission; but if it were even a penalty, the plaintiff in error could not get rid of the contract, by paying the penalty. Ibid. 259. The demurrer, then, was properly sustained.

But on sustaining the demurrer to the plea, the court erred in giving final judgment for the plaintiff; the judgment should have been respondeat ouster, (PI. & PI. Dig. 615, sec. 8,) and for this error the judgment must be reversed, and the cause remanded.  