The opinion of the court was delivered Oct. 30, 1854, by
Woodward, J.— Several conclusions, both of fact and law, may, for brevity’s sake, be assumed in this case, without harm to the parties, to the testimony, or to arguments of counsel.
That William P. Brady had an equal interest with Thomas Billington in the warrant of 16th April, 1800, and good right to make the contract of sale with Isaac McHenry; that Henry Billington, from the date of the patent to him, held the legal title- in trust, as well for Brady as the heirs of Thomas Billing-ton, deceased, until the 9th June, 1842, when Brady released his interest to the patentee; that Isaac McHenry entered into possession of the land, and held it until his death, under the contract made with Brady, November 22d, 1801; that his son and executor, William McHenry, by himself and tenants, kept up that possession for the benefit of the father’s estate, until the 28th March, 1833, when it was sold at sheriff’s sale, on a judgment against William, as executor of his father, to John Piper; that Sloneker then succeeded to the possession, as Piper’s tenant, and continued it till evicted by the Billington ejectment, instituted on the 5th June, 1840 — these are all either conceded points, or plain and necessary deductions from the evidence, and hence it results, that Piper claims a possession long enough continued •to confer title under the Statute of Limitations, but taken and maintained under the Billington title; it was never adverse thereto, and, therefore, never became a title.
But the plaintiff insists that it was adverse, and to prove this, points us to what he calls a rescission of the Brady contract, after which, he maintains, the possession became adverse and continued so for twenty-one years and more. Let us see on what ground this position rests.
It was in evidence, that on the 22d December, 1803, William P. Brady made a due-bill to Isaac McHenry for a balance on settlement of ¿613 Is. 7^d., which, it was alleged, was to apply as a payment on the contract of 22d November, 1801. After Isaac McHenry’s death, William, as his executor, sued Brady on this due-bill before a justice of the peace, from whose judgment.an appeal was taken, and on the 15th December, 1815, a judgment was taken, by the plaintiff, for the amount of the due-bill and interest, and with stay of execution for five months, “to be released,” says the record, “provided a title be made on the contract with Isaac McHenry within that period, and on the *116making of that title, credit to be given on the contract pro tanto, or so much as shall be due. June 15, 1819, on motion of Mr. Alexander, judgment.”
This is what is called a rescission of the contract. But it could not be that, because if is an elementary principle of law, that he who would rescind a contract on account of the other party’s failure to comply with conditions precedent, must be in no default himself, and both parties must be placed in the same condition they were in when the contract was made. There was no time fixed in the article, at which Brady was to convey the title; but the purchase-money was to be paid within six years; and when the title should be made, whatever remained due of the purchase-money, was to be secured by bond and mortgage. These covenants as to the title and the mortgage, were dependent and concurrent; and if McHenry meant to rescind on account of Brady’s failure, he should have made Brady’s covenant precedent, by offering to perform his own. But in 1815, the six years had expired, and all the purchase-money was due, without a tender or payment of which, he was not entitled to demand the • title. He was the party in default, and he could not rescind without the consent of the other, for that would be to release himself from a liability that was precedent and fixed. Nol’ could he rescind without surrender of the possession, which was never made nor offered. So far from intending a rescission of the contract, he retained the possession, and obtained his judgment on terms which look more like compelling specific performance of it, than like an abandonment. Thomas Billington having died, the title was probably in a condition which rendered it inconvenient for Brady to convey, and he made no attempt to do so, because the purchase-money was not forthcoming. McHenry, meanwhile, recovered the money paid, and then the parties stood, as vendor and vendee always stand in articles of agreement when the vendee is in possession and the purchase-money unpaid; the one, trustee of the title, the other of the purchase-money. Between parties so situated, the Statute of Limitations has no application, no more than between landlord and tenant. Neither can appropriate the benefits of the bargain, and escape its burdens, by what is called here a rescission of the contract, and a setting up of the statute.
But this is not all. If McHenry’s judgment was in affirmance of the contract, so was Piper’s defence to the Billington ■ ejectment of 1840, for there a conditional verdict was rendered for the plaintiff, to be released on payment of the purchase-money. That record does not look as if the contract which was interposed as a defence, had been rescinded. It must have been set up as a valid and existing equity, by the party who ■now repudiates it, else he could not have obtained the chance of *117holding the land, on the very reasonable terms of paying the purchase-money. Possession, taken under a contract of purchase, the covenant of the purchaser never performed, but the possession retained, and when the holder of the legal title sues for the possession, the equities which spring from the contract asserted successfully by the present plaintiff; these are the circumstances in which he now assumes the desperate position, that the contract had been rescinded in 1815, and that he and McHenry had been ever since, holding adversely. It cannot be sustained. There is nothing in the cause, either of law or evidence, to give it countenance. Mr. Piper, having preferred to turn out, rather than pay the purchase-money, he certainly cannot regain the possession without paying it.
Perceiving no error in the points ruled, the judgment is affirmed.