By instrument dated October 27, 1921, the parties agreed to the purchase and sale of a parcel of land in Barnstable, with certain personalty thereon, for $8,000. The plaintiff paid a deposit of $500, and now seeks to recover it in this action. The original agreement provided that the premises were to be conveyed by warranty deed on or before November 10, 1921. On that date the parties and their attorneys met at the registry of deeds in Barnstable, and the defendant tendered a duly executed deed. This the plaintiff refused to accept and, for the first time, alleged that there were certain minor defects in the title; and he requested the defendant to register his title in the Land Court. The agreement was thereupon modified by substituting for a warranty deed a quitclaim deed under a Land Court title. Further, the time for performance was extended first until February 10, 1922, then to April 10, and later to May 10, 1922. These delays, made necessary by the proceedings in the Land Court, were readily agreed to by both parties. In fact, in sending the last extension, counsel for the plaintiff stated that the decree of the Land Court would not be entered until about three weeks after the return day of the citation (May 29), and suggested that the next extension be until June 19. He also asked that “ Dr. King be authorized to take possession pending the completion of the Land Court proceedings.” The defendant was not willing to assent to this last, in view of the trouble and expense to which he had been put; but was willing to pass the papers without awaiting the Land Court decision. Thereupon the plaintiff on May 8 wrote that he would not agree to another extension. On May 10 the parties met *463at the registry, and the defendant tendered a warranty deed. This the plaintiff refused, and demanded repayment of the deposit of $500.
A decree registering the title was entered on July 3, 1922, and was duly filed in the registry on July 6. On July 10 the defendant notified the plaintiff of the registration, and added that he would be ready to pass title at the Barnstable registry of deeds at 11 a.m. on July 19, 1922. At that time the defendant was present, ready to deliver the deed; but the plaintiff did not appear.
The trial judge was fully warranted in finding that the parties expected the time for passing the title should be postponed until it was registered; that they should not be held strictly to the time fixed in any of the agreements for extension; and that there was no rescission of the contract when the defendant failed to tender a deed of a duly registered title on May 10, 1922. As he expressly found: “ there is nothing in the original agreement or in any of the extensions or in the surrounding circumstances to indicate that the parties intended that time should be of the essence of the contract.” Mansfield v. Wiles, 221 Mass. 75.
On the facts as found it was the plaintiff who made default in the performance of his contract; and the defendant was ready and willing to fulfil all his obligations. In such circumstances the defaulting purchaser ordinarily is not entitled to recover a deposit which he has made in part payment. Smith v. Greene, 197 Mass. 16, 18. Keefe v. Fairfield, 184 Mass. 334. Ketchum v. Evertson, 13 Johns. 359. Skookum Oil Co. v. Thomas, 162 Cal. 539. Hillyard v. Banchor, 85 Kans. 516. Grimes v. Goud, (Maine) 10 Atl. Rep. 116. Steinbach v. Pettingill, 38 Vroom, 36. Lawrence v. Miller, 86 N. Y. 131. Sanders v. Brock, 230 Penn. St. 609. L. R. A. 1918 B, 540 note. The conclusion reached by the trial judge might well have rested- on this ground. It was equally open to the defendant to set up an equitable defence in his answer, under G. L. c. 231, § 31. The judge found the facts to be as alleged in the answer; and, in substance, ruled that the defendant would have been entitled to a decree for specific performance in a bill in equity season*464ably brought against this plaintiff. In other words, he was entitled in equity to be “absolutely and unconditionally relieved against the plaintiff’s claim.” And the subsequent lease of the premises, after the plaintiff had finally rescinded his contract and brought this action, did not constitute a rescission of the contract by the defendant. “ The plaintiffs renounced the contract, and peremptorily refused to fulfil it; it was in vain, therefore, to keep the land for them. The plaintiffs cannot, by their own wrongful act, impose upon the defendant the necessity of retaining property which his exigencies may require him to sell.” Ketchum v. Evertson, supra, page 365. Sanders v. Brock, 230 Penn. St. 609, 615.
Order for judgment affirmed.