It is apparent from the evidence in the record that Summerall, the plaintiff, entered into possession under his purchase from Graham, the defendant, and that he still retains that possession. He has not surrendered or offered to surrender it, nor has lie been evicted. He shows that the land was granted by the State to Smith in 1842, but he does not show that Smith, or any one claiming under Smith, has disturbed him, or is likely to disturb him. He shows, also, that while in possession under his purchase from Graham, he was threatened with a suit by Surrency, and that to appease Surrency he bought from him, and took a conveyance; but he does not show that Surrency had any title, or ever had any. No connection is *731made out between Surrency and Smith, and how the former came to his asserted ownership is left wholly unexplained. The non-suit was proper. Restitution before absolution is as sound in law as in theology; and that doctrine prevents an ex parte rescisión by the plaintiff without restoring the defendant to his original situation. Code, §2860.
Judgment affirmed.