delivered the opinion of the Court.
Mr. Ch. J. Murray concurred.From an examination of the record, it appears that if the defendants had paid the purchase money they would have received a deed to the land, as stipulated for, in the plain*268tiff’s bond for title. The only object, therefore, of the defense set up, must have been, to rescind the contract, upon the ground that the plaintiff could not perform, because he had no title to the land.
For this purpose, the averments in the answer are insufficient. It was necessary to show an outstanding paramount title in another.
So we decided in Thayer v. White, 3 Cal. 228, and in Smith v. Fowler, at this term.
Judgment affirmed.