Dissenting. — I am unable to concur in the conclusion reached by the majority of the court. Under the contract the plaintiff purchased a certain tract of land and it was understood between the seller and the purchaser that certain improvements were on the land purchased, but after a survey it was found that three or four acres of the land in question containing some of the improvements were not on the land described -in the contract of purchase. As soon as that was ascertained, the seller offered to scrip the land and convey to the purchaser a good title to the land on which that part of said improvements were situated so that the purchaser would get the land she purchased with all improvements that she had contracted to purchase. But for some reason, as soon as she ascertained that all of the improvements were not on the land described in the contract, she refused absolutely to purchase said land and take a good *226title thereto. The record shows that the seller, the defendant, acted in perfect good faith in this transaction and that there was no deception or misrepresentation on his part. He informed the purchaser at the time she examined the land that he did not know whether the lines were located.
The clear intent of the contract of purchase was to get the land on which all of the improvements were situated, and it was not an essential part of the contract, sufficient to defeat it, if a good title to all of the land did not come through the grantor or grantors that were at first contemplated by the contract. The seller offered to convey to her a good title to all of the land she purchased, containing all of the improvements and to convey to her a good title within the time required by the contract. She was offered just what she purchased with a perfect title and it is clear to me that the contract ought to be enforced against her.
Then again: She has had possession of the land for about two years, and the evidence clearly shows that the rental value of that land was $150 per year, or $300 for the two years. She having had the use of the land, the rental value ought to be applied on the $500 payment made by her to the seller in case she is permitted to repudiate the contract.
There is no equity in favor of the respondent, the purchaser. She ought to be required to take said land since a good title has been offered to her. The judgment ought to be reversed.