(dissenting). — I am unable to concur in the affirmance of the judgment in this cause. I agree with the majority of the court that the transaction was such that the plaintiff was entitled to have it avoided, and have his lots returned to him. I also agree with them that he could only have this done upon payment to the defendants of the three hundred dollars. In my opinion, however, equity having jurisdiction of the matter, it should not dismiss the action, but should allow plaintiff the relief to which he is entitled upon such conditions as will fully protect the rights of the other parties. It does not consist with my idea of equity to dismiss a plaintiff who is shown to be entitled to relief upon the performance by him of certain conditions simply for the reason that he did not tender a compliance with such conditions at the time he commenced his action. I think the proper course in such *99a case is for the court to grant the relief upon condition that plaintiff shall do what he ought to have offered to do before the commencement of the action, and impose such further terms by way of the costs of the action as will put the defendants in as favorable a condition as they could have been if the tender of the conditions had preceded the suit. Under this rule the judgment in the case at bar should be reversed, and the cause remanded with instructions to grant the relief prayed for by plaintiff upon condition that he re-convey the lots, conveyed to him, by deed, warranting against his own acts, and pay to the defendants the said sum of three hundred dollars, and interest thereon from the time he received it, and all costs of the action.