On the 26th day of March, 1872, none of the papers had been delivered. The notes had not become the property of the plaintiff, and the farm had not become the property of the defendant. On that day a new agreement was made, by virtue of which the defendant undertook to pay off the Leach mortgage; and, instead of delivering the two $500 notes, the difference between $1,000 and the amount of the Leach mortgage was paid by the defendant. The clause was inserted in the plaintiff's deed subjecting it to the Leach mortgage, and the two $500 notes never were delivered, and never became the property of the plaintiff; and this new arrangement took the place entirely of the first arrangement.
In order to rescind this contract, it was necessary that the parties should be restored to their original position, which the plaintiff could not do, because he could not relieve the defendant from that clause in the deed by which he took the property subject to the Leach mortgage. So far from rescinding the contract, he took active measures to compel the defendant to perform it by causing the Leach mortgage to be foreclosed and the agreement performed.
This being so, the plaintiff never had any cause of action against the defendant. He could not recover what is called the consideration of those notes, because he could not and did not restore to the defendant what the defendant had given for it. He could not recover for the breach of the agreement, because he had not been damaged by it.
If the plaintiff sees fit to buy back the land, I do not see that that affects the matter at all. The defendant still owes the remaining $1,500 to the plaintiff, notwithstanding that the plaintiff, by his own action in causing the Leach mortgage to be foreclosed, has deprived himself of the security of the land on the remaining part of the purchase money.
What the effect of these facts would be by way of defence, should the plaintiff endeavor to enforce the other notes or to maintain an action on the covenants in his mortgage, need not be inquired into here.
LADD, J., concurred.
Judgment on the report. *Page 489