1. When title is retained as security for purchase money, the security ought to be available as soon as the debtor puts himself in default. The duty of paying the first instalment is as perfect as the duty of paying the last. If the purchaser seeks to retain the possession of the land as against the better title, let him pay according to his undertaking. Why should he have more time than hé has stipulated for ?
2. The insolvency of the vendor is no defense to his action for the land. Because he is insolvent, must he lose his land ? This would be a hard rule. It is said, however, that he has not paid his own vendor, and that he has only a bond for titles, and, therefore, could not make a conveyance. But, perhaps, the very use he has for the land, or for the money which he has bargained it away for, is to pay his vendor. If he is limited in his resources, the reason for his having full command of them is but the stronger. How *339can lie pay, when the man to whom he has sold, or contracted to sell, will neither pay nor yield possession ? Inability to convey may be ground for rescisión; but surely a purchaser from one who cannot make titles, is not to be tolerated in keeping the land and withholding payment of the purchase money too. If he can render a reason why his vendor should not be trusted with the money, let him pay the money into court, and have the proper steps taken to apply it to the debt of his vendor, and thus render the latter able to convey.
3. The point that the vendor cannot recover in this action, because the real legal title is outstanding in his vendor, is not well taken. The defendant acquired possession under the plaintiff, and in this action is estopped from denying the plaintiff’s title. Let him give up the land or pay for it. How can he avoid doing one or the other ? He can take his choice, but cannot be allowed to retain another’s property without paying for it according to contract.
Cited in the argument: 39 Ga., 197; 40 Ib., 32; 33 Ib., 122 ; 29 75., 25 ; 30 75., 336.
Judgment affirmed.