#### Ellis *against*Hoskins.

NEW-YORK,

October, 1817.

E. covenanted to convey to H. a lot of laud, on condition that H. paid him ¿fía dollars, in several instalments. H. paid the first instalment, ami offered to pay the *second,*if i-j. would give hin¿ security against aceitain mortgage, which was *aticnon*the premises, at the time of the purchase. B. refused the security, but offered to receive the moieey and perform the contract j. and i-j. refused ¡ te pay any more money, and havjns gone into poo. session at the time of the purchase, Jí, brought an action, and ejected him, and ff. brought an action against L\ te recover back the money he had paid. I¿ was held tftatHL had no right tv rescind the contract, and bring his action tn recover back bis money, there being no fraud on the part of E., and H. not having entitled himself to demaud a deed, ib? the Jut.

IN ERROR, to the court of common pleas of *Onondaga*dounty.

*Hoskins*brought an action of *assumpsit,*to recover back money paid by him to *Ellis,*on a contract for the sale and purchase of land. On the trial in the court below, the jury found a special verdict. On the 19th of *September,*1811, the parties entered into articles’of agreement, by which *Ellis*agreed to convey to *Hoskins, “*by a good warrantee deed,” 52 1-2 acres of land, in lot No. 16, in *Manlius,*on condition that *Hoskins*should pay to him the sum of 500 dollars ; to wit, *?0*dollars in hand, 30 dollars on the 15th *oí February,*1812, and 400 dollars in four equal annual instalments. Soon after making the contract, *Hoskins*went into possession of the land, and having paid to *Ellis*156 dollars, and interest amounting to 195 dollars and 40 cents, he offered, on the 15th of *February,*1813, to pay *Ellis*the balance of the second payment, due on that day, provided *Ellis*would give him security against a mortgage, executed by one *Cook,*and which was then a *lien*on the premises. *Ellis*refused to give the security; but said he was ready to receive the money tendered, and to fulfill the contract on his.part, alleging that *Cook*was bound to pay off the mortgage, and was able to do it. *Hoskins*refused to pay any more money, and *Ellis*brought an action of ejectment against him, and received possession of the premises. *Hoskins*thereupon brought this action to recover back the money he had paid. The special verdict stated the mortgage of *Cook*as outstanding and unsatisfied of record ; but that *Cook*was a responsible person, and fully able to pay off the mortgage. The court below gave judgment for the plaintiff, for 195 dollars and 40 cents.

*Randall,*for the plaintiff in error.

1. This action will not lie where the contract is still open.* The recovery of the posses- . r , *J** sion by the defendant was not a rescinding of the contract.

2. The special verdict does not state an actually existing and unsatisfied mortgage. It may have been paid off, though not satisfied on the record. The defendant is not bound to show a .performance of the contract on his part? but the plaintiff must *366prove a failure by him to perform.* There is no such evidence- . , . - . 1 *i ^ r i & i*m this case ; but, on the contrary, the defendant offered to perform his part of the contract, on the plaintiff’s paying the mo- ' ney* Admitting the mortgage to be subsisting unpaid, it was no evidence of fraud on the part of the defendant. It was registerd at the time of the contract, and the plaintiff must be deemed to have had notice of it, when he made the purchase. It might be, and so the court will presume, that before the time, when the defendant was bound to execute the deed to the plain-the mortgage would be satisfied. *Greenby*v Cheevers,† is a case in point, and conclusive for the defendant below.

*Yelverton,*contra,

insisted, that by bringing the action of ejectment, and turning the defendant in error out of possession, the plaintiffin error had rescinded the contract of sale, and the plaintiff below had a right to bring his action to recover the money ¡je had paid.‡ The defendant had a right, also, to rescind the contract on his part. He was not bound to accept an incum-* bered title, nor to go on paying his money for a bad title.§

*

**Doug. *23. 1. Term Rep*132. *5 Johns. Rep. 85.*

*

**12 Johns R

†

*9 Johns. Rep. 125.*

‡

*5 Johns. Rep. 85.*

§

8 Johns. Rep. 257.1. *Vesey, jun. 921. Sug. Law of Vend.*200-211.

Per Curiam.

There is no averment, oi\proof, of any fraud or deception on the part *oí Ellis,*in regard to the mortgage; nor is there any evidence -of a breach of the contract on his part. He has acted in good faith; and *non constat,*that he will not be able- and willing to give a perfect and unincumbered title to the premises, when it becomes his duty to execute a conveyance, according to the covenant. *Hoskins*has no justifiable cause for Rescinding the contract. For aught that appears, he had full knowledge of the mortgage,-when*he entered into the agreement. To permit, him to recover back the money he has paid would be'allowing him to rescind a fair and voluntary contract, on the ground of his mere will and pleasure, and thereby take advantage of his own default. If he had tendered the whole price -of the land, and demanded a deed free from all incumbrances,-a -different question might have arisen.

The case of *Greenby*v. *Cheevers*is in point for the plaintiff in, error, and the judgment of the court below must, therefore, be -'reversed.

Judgment of reversal;.