The bill in this case is filed for the rescission of a contract on the ground of fraud. The bill was demurred to by the respondent, and the present appeal is taken from the decree of the chancellor overruling the demurrer.
It is no objection to the equity of a bill to rescind a contract on the ground of misrepresentations apd fraud by the render, that the vendee may sue at law upon the covenants of warranty contained in the deed. Cullom v. Branch Bank, 4 Ala. 21; Baptiste v. Peters, 51 Ala. 158.
When a material fact is misrepresented, and the other party relies and acts upon it, a court of equity will, at the suit of the latter, rescind the contract; and when a purchaser is entitled to a rescission of the contract by reason of material misrepresentations of the seller, upon which the purchaser relied, the purchase money, if paid, must be refunded, and if not paid, its collection will be enjoined without regard to the solvency of the vendor.— Lanier et al. v. Hill et al., 25 Ala. 554; Kelly's Heirs v. Allen, 34 Ala. 663; Baptiste v. Peters, supra.
Where a party has been induced to enter into a contract by the misrepresentations of the other contracting party as to any mutter aifecting the enjoyment of the rights intended 'to be conferred by the contract, the party thus wronged or defrauded need not wait until the enjoyment of the rights conveyed be actually disturbed or interfered with, before filing his bill for a rescission of the contract.
What we have said disposes of the first five grounds of the demurrer.
The sixth ground is equally without merit. -It is the duty of the vendor and not of the purchaser to make the title good.—Frix v. Miller et al., 115 Ala. 476.
The seventh ground of demurrer is not insisted upon by counsel.
The eighth and last ground is urged by counsel as being fatal to the bill. The point made is that the de*169maud made by complainants for .a rescission of the contract was not accompanied with an offer-to convey back to the respondent all the property, rights and privileges, which they tool?; under their deed from the-respondent. In the first place the bill avers that upon a demand made by the complainants for a rescission of the contract, the defendant refused to rescind. This, refusal by the defendants to rescind dispensed with the necessity of a formal offer to reconvey, if such was. a prerequisite to the filing of the bill in order to give it equity. The bill contains an offer “to reconvey to the-respondent all such title to said property as he Ixa-s conveyed to them,” and as amended, avers that before the-filing of the bill, complainants abandoned the possession of the said property, and notified the defendant that they had given up the same.
No authority has been cited by counsel where in a bill for the rescission of a contract -on the ground of fraud, that a tender of a deed reconveying the property was; necessary to give equity to the bill. The weight of' authority seems to bé in such a case that a restoration of possession of the property, or abandonment of the* same, is not essentially a prerequisite to the filing of the bill. It is. true that the principle laid down in Martin v. Martin, 35 Ala. 560, was questioned in Eureka Co. v. Edwards, 71 Ala. 248, as not being sustained by the authorities there cited. But we find-upon -an examination of the authorities cited in that case, that the principle stated is supported, and we adhere to the decision in Martin v. Martin.—See Garner, Neville & Co. v. Leverett, 32 Ala. 410; Bailey v. Jordan, 32 Ala. 50; Prout v. Roberts, Ib., 427; Meeks v. Garner, 93 Ala. 17; Foster v. Gressett’s Heirs, 29 Ala. 393; Younge v. Harris’ Admr., 2 Ala. 108.
There was no error in overruling the demurrer, and the decree of the chancellor is affirmed!..