On Rehearing.
In our original opinion this language was used: “Neither by his petition nor by his testimony does he at all tender back the value of the use of the premises by him during this fourteen months’ period of his occupancy.” In his motion for rehearing appellant called our attention to the fact that, in a supplemental petition contained in the transcript, he did make such a tender. We therefore withdraw the above-quoted statement.
Having discovered this error in our opinion, we have reconsidered the entire case, but have reached the conclusion that the proper disposition was made thereof, notwithstanding the error. Whatever might be the meaning of the contract, it is certain that appellant had no right to procure a conveyance of the house and lot, except upon fulfilling a condition precedent, namely, .that appellee be freed from liability on his indebtedness to Mrs. Simpson. If appellee was guilty of any technical breach of his contract, it was insubstantial in so far as the rights of appellant are concerned. There is no showing that appellant could not have procured a deed to the property at any time up to and including the day of trial upon complying with the conditions of the contract. On the other hand, one of the substantial provisions was that appellee should have the rent accruing prior to the time the property should be conveyed to appellant, and appellant’s act in refusing to surrender possession of the premises after he had moved upon them was more clearly a breach of the contract than was appellee’s act in having Mrs. Simpson sell the property and later convey it to him. This is purely an equitable proceeding, and appellant, who himself breached the contract and made it necessary for appellee to protect himself, cannot come into a court of equity and secure a cancellation.
The motion for rehearing is overruled.