The plaintiff had a contract with the defendant for the conveyance of a piece of land to him by the latter; payments to be made by installments, and the conveyance to be made and delivered when the purchase money should be paid in full. The land was taken by eminent domain proceedings after the contract was made. In ignorance of that fact, the plaintiff paid installments. ' He may recover back all he has paid, for the defendant cannot convey the land to him. That the plaintiff- could assert his equitable rights to the award made for the land does not enter into the case. He is not obliged to do so. The rule of the equitable ownership of the land pro tanto by a purchaser who has paid in part but not received the deed is made for his protection. It seems strange that it should be used to prevent him from maintaining a common law action to recover back what he has paid on the vendor being unable to perform. The defendant contracted to convey the plaintiff the land and cannot do so. The plaintiff is not compelled by law to substitute the award for the land, and pay the contract price. Suppose the award were less than the contract price? The defendant cannot thrust the plaintiff’s equities upon him or compel him to fall back on them. They are for the plaintiff’s protection, and he is free to resort to them or not as he sees fit. He may prefer to pursue his common law remedy. Hone of the cases cited has any application. Here the defendant cannot carry out his contract to convey the land. In the case of the lease cited, the lease had been made and the term thus conveyed to the tenant before the land was taken for public use. It was not the case of a contract for the making of a lease in the future.
The plaintiff seems to be suing for only some of the installments he has paid. If he prevail, he may be embarrassed by the rule *285against splitting a cause of action if lie tries to recover the amount of the others.
Judgment of the Municipal Court reversed, with costs, and demurrer sustained, with costs, with leave to plead over on payment of costs.