As both parties asked a rescission of the contract, neither can complain of the judgment of the Court in that regard. But upon a rescission of the contract, it was the right of the parties to have an adjustment of their respective equities, so as to do complete justice between them in respect to the subject matter of the litigation. This was prevented by the rulings of the Court sustaining exceptions to portions of the answer and amended petition setting up the equities of the parties growing out of the contract. These rulings were erroneous, and will require a reversal of the judgment and the remanding of the cause, in order that the Court may hear evidence and proceed to an adjustment of the equities of the parties.
For a better understanding, by the parties, of their rights, in the future conduct of the cause, it is proper to observe, that neither party was entitled, upon his own allegations, to have the contract rescinded. The plaintiff was not entitled to that relief, without first refunding or offering to refund the purchase money he had received; unless he had shown by his averments, that the value of the use and occupation of the premises was sufficient to cancel that obligation, or some other matter in satisfaction. His averments upon this subject are too indefinite to enable the Court to pronounce that such a case is presented. The only cause of action he has shown is that contained in his amended petition, where, in the alternative, he seeks to recover judgment for the purchase money remaining unpaid. The defendant does not show that he could not obtain a good title by paying the *261purchase money into Court. He has taken a covenant to protect him from any lien which the plaintiff’s vendor may have for the purchase money due him from the plaintiff. If the defendant had seen proper, he might have made the plaintiff’s vendor a party to the suit, and had an application of the money, due from himself, made to satisfy and discharge the incumbrance, and a title decreed to him. In the present aspect of the case, its further examination is unnecessary. For the error in sustaining the defendant’s exceptions to so much of the petition as set up equities growing out of the contract in question, the judgment must be reversed and the cause remanded.
Reversed and remanded.