By the Court.
Lumpkin, J.delivering the opinion.
A new trial was asked for in this case, on four grounds: Because 1st. The verdict was contrary to evidence: 2d. To *406law: 3d. To the charge of the Court; and 4th. On account of newly discovered evidence. The Court sustained the motion on the fourth ground, overruling the other three. The defendant excepted to the first, and the complainant to the other ruling.
We remark — to save trouble and expense in future, that there was no necessity but for one bill of exceptions in this case. The judgment below was, that there should be a new trial; and the question for us is, was that judgment right? If wrong for the reason given, and yet right for the reasons which were omitted, still the judgment must stand; all the grounds therefore, in this, and every similar case, must necessarily be considered by this Court.
[1.] As to the ground of newly discovered evidence, it is rather slight. Rogers, the witness, was examined on the trial. His testimony sought is not materially different from that which was given. It may be noticed that the bill was filed at the instance of the assignee, not the obligee of the bond. Still, if the decision rested upon this ground alone, we might hesitate in affirming the judgment.
[2.] But in the view we take of this case, the judgment should be sustained for a better reason. Some of us have strong doubts whether the bond, in this case, is anything more than title bonds are generally, namely, security for the purchase money, in the nature of a mortgage; the vendor retaining the title to enforce the payment of the purchase money. That notwithstanding the words “ punctually paid” are in it, still it is not a forfeit bond.
But considering all that the defendant claims in this case, that time was of the essence of the contract; how stands the case ? Fifty dollars in property was paid at the time of the trade; one hundred dollars was to be paid December, 1848, and eighty more twelve months thereafter. In February 1849, after the first note fell due, Duke received fifty dollars of Smith, which was credited on the $100 note. This was certainly a waiver of the failure to pay punctually the first *407note. There was no abandonment of the contract by Duke at that time. He says to-be-sure, in his answer, that he took the money conditionally, viz : provided the residue was paid in five days. But the proof overthrows that statement, and it might be plausibly argued at least, that from his conduct on this occasion, and failure to notify Smith that he should insist on a strict compliance in future, as to the-last payment, that it was calculated to lull Smith into security upon that point. But passing by all this.
The last note fell due Dec. 1849. The 1st of June 1850, Hudson calls on Duke, offers to paj? the whole balance of the purchase money and take a deed. Duke declines, and insists that he is entitled to hold on to the $100 paid him and to withhold the titles; and this was his interpretation of the contract. He did not refuse to refund, because Smith and not Hudson, was entitled to restitution. But because neither were.
Now it will not be pretended that this is the law and equity between these parties. Duke was bound to elect, to execute in toto, or rescind in toto, and having refused to do the- latter, he will be compelled to do the former. Had he offered to put the parties back where they originally stood, his case might have been different. I do not say that it would have been.
But further; he does not object on account of the advance of real estate, or the altered circumstances of the parties, or insist on the abandonment of the contract by Smith. He simply decides to hold on to all he has got under the trade, and the titles too. This he cannot do, and we repeat,, that failing to rescind at the proper time, when called on to do so, it is too late now. The offer to pay will be considered to have been made within a reasonable time ; and a Court of Equity will decree, that titles shall be made, upon the payment of the purchase money.
New trial granted.