Opinion by
Reeder, J.,After the articles of agreement had been executed by which S. V. R. Wells agreed to convey to Willsey the land in fee, and after Willsey had been in possession of the land for several years and had paid a considerable portion of the purchase money, Willsey discovered that Wells did not own the land in fee, and “ could not and would not make a deed to him ” for the property. The title of the land in question had been in the defendant’s son, Henry V. Wells. After his death, the title passed by inheritance to Wells and his two daughters. He had no power of attorney to act for them, but undertook to convey their title without their consent. Wells, upon one occasion after the execution of the agreement, called at Willsey’s house and asked to see Willsey. He was told that Willsey was not in. Mrs. Willsey then asked him if he would give them a deed for the house. Wells replied that he “would not give a deed for the property; that the property did not belong to him, and that he could not nor would not give a deed.” Afterward, and before this suit was commenced, Wells and his two daughters executed a deed conveying the property to Daniel Mulvihill. After the articles of agreement were entered into, and after Willsey discovered Wells’s inability to convey any but his own interest in the property, which was less than an estate in fee simple, he had a right to insist upon a deed for whatever interest Wells had in the property, or to repudiate the contract and sue for whatever money he had paid to Wells under the articles of agreement on account of the purchase money of the land.
It is unnecessary to cite authorities to support this elementary and well-known principle of law. The party agreeing to convey can also put it out of his power to convey the land to the other party to the agreement by a conveyance to some one else. The choice of remedies would remain, in this instance, to the other contracting party to follow the land with his equitable interest, if the grantee took the title after notice of the other’s equitable interest, or to sue the first party to the contract for the recovery of the money paid upon the agreement: *486Feay v. DeCamp, 15 S. & R. 227; Newcomb v. Brackett, 16 Mass. 161.
In this case, however, we cannot consider the former proposition. The .articles of agreement were not recorded; Willsey was not in the occupancy of the property, the house being vacant' at the time of the deed to Mulvihill, and he, therefore, took his deed without notice, and no equitable interest of Willsey’s could follow the land into the possession of Mulvihill, even though Wells had the title to, or the power to convey, the whole of the property, which he never had.
The conditions seemed, upon first examination, to be complicated by the sale to O’Hagan. O’Hagan procured a judgment against Willsey, which was entered of record in 1888. The defendants offered to prove that at a sale upon a writ of venditioni exponas this property was purchased by O’Hagan, and the sheriff’s deed delivered to him January 11, 1893, which was rejected by the court. Subsequently, on February 10, 1893, a deed for this property was given by O’Hagan to Wells and his two daughters. The offer of this deed was also rejected by the court.
The question presented for our consideration would be a difficult one, had the deed from Wells and his two daughters to Mulvihill postdated the sale to O’Hagan, and from him to Wells. But. Wells had himself repudiated the contract of sale to Willsey by his deed to Mulvihill on November 25, 1889. Before the time of the sheriff’s sale, Wells had disaffirmed the contract; and, even though Wells had attempted to assert them, his equities had been divested because the articles of agreement had not been recorded, and there was no proof that Mulvihill ever had notice of their existence, except so far as notice to Mulvihill might be implied by the occupancy of the premises by Willsey’s tenant.
What the effect of his removal, at the same time as the giving of the deed to Mulvihill might have had upon his equities, it is unnecessary for us to determine. The fact that Wells could never have conveyed title to the property, as he was the owner of only a life estate, is sufficient for our determination of the question before us. The entire property was conveyed to Mulvihill by all the owners. Willsey at once surrendered the possession of the property to Mulvihill, and the only right that *487was left him was the right to recover from Wells the amount paid as purchase money under the articles of agreement. There was nothing of Willsey’s left for O’Hagan to take by his purchase at the sheriff’s sale, and the offer of the sheriff’s deed and his deed to Wells were properly excluded.
It is contended by the appellant that, because the statement contains the averment that “ Wells, for himself, and for and on behalf of, and with the knowledge and consent of, Ada LaDue and Frances Wells Forster, made an agreement with the plaintiff, Samuel Willsey, then residing in Renovo, by the terms of which,” etc., the plaintiff could only recover on the theory of facts contained in his statement; and that, unless his proof accorded with the facts as set forth in the statement, he was not entitled to recover at all.
During the trial of the cause, a petition from the plaintiff was presented to the court to amend the record by striking out the names of Ada Wells LaDue and Frances Wells Forster as defendants, and “ a nolle pros, entered as to them.” This amendment was allowed. The allowance by the court below of this amendment struck out all allegations of liability on the part of Ada Wells LaDue and Frances Wells Forster from the entire record, eliminating them not only as defendants, but eliminating from the statement of claim itself all averments which would make them liable as defendants. The amendment was made after the court had ruled that under the evidence the plaintiff had no right of action against these two defendants, and it was made, evidently, to make the entire record conform to this position of the court. Therefore, when the allegation as to the liability of Ada Wells LaDue and Frances Wells Forster was stricken from the record, as they were by this amendment, there were no averments left in the statement of claim with which the proof in the case did not accord.
We have, in this general way disposed of all the material questions raised by the assignments of error. Those which we have not discussed are without merit.
Judgment affirmed.