The only question of any importance in this case is whether there was a rescission of the contract for the purchase and sale of the house and lot so as to entitle the purchaser to recover back so much of the purchase-money as he had paid. In considering the question, Syme must be treated as the purchaser, notwithstanding the title was to be conveyed to his wife. • Neither party had by the contract the right to rescind, and if there was a rescission, it was by mutual agreement of the parties. It was, proved on the trial, and the referee finds that Syme told the defendant his wife was in the lunatic asylum, and the purchase-money of the land would not be paid, and he must give it up and defendant must take it back. Syme thereupon surrendered possession, and defendant entered upon and leased the premises to another person, and has ever since retained control of the same.
When a contract for the sale of real estate is rescinded by mutual consent, the purchaser is entitled to recover whatever he has paid toward the purchase-money. 2 Hilliard on Vendors, 65. But such a- recovery is not allowed in any other case, except when the vendor has been guilty of fraud in the sale, or is unable or refuses to perform the contract. 2 Hilliard on Vendors, 65; 1 id. 302.
The contract being mutually rescinded, the vendor was entitled to recover for the use and occupation of the premises by the purchaser. 1 Hilliard on Vendors, 302. Setting up a claim for use and occupation, and a recovery therefor, is conclusive evidence of her consent to rescission of the contract.
The declarations of Syme, while he was in possession of, the *311premises, were offered in evidence and rejected. The object of the defendant was to prove that he, Syme, claimed to control the premises, and to treat them as his own. If the fact was one of any importance in the case, it was substantially assumed by the referee. They were totally immaterial, and their rejection worked no prejudice to the defendant.
The law of 1860, chap. 348, regulating the manner of' executing assignments by debtors for the benefit of creditors is not an insolvent law, and is not interfered with by the bankrupt law. It is quite possible that the assignments contemplated by that law may not be permitted by the bankrupt law, as to which I express no opinion. If they are not, the law is suspended in its operation, and will only be revived when the bankrupt law is repealed. The assignment to the plaintiff by Syme is not rendered void, because the assignee did not file a bond in exact conformity with the provisions of the law. The assignee has thirty days from the date of the assignment in which to file the bond. During the thirty days the title must be in the assignee, so ■ that the legislature contemplated that the title should pass. But until a proper bond was filed the assignee had no authority to sell, dispose of, or convert for the purposes of the trust, any of the assigned property. Laws of 1860, chap. 348, § 3.
Collecting the assigned choses in action was not a conversion of them, within the meaning of this section. The other questions presented by the appellant’s points do not require any consideration.
The judgment must be affirmed.
Judgment affirmed.