delivered the opinion of the Court.
The Court is of opinion, that the contract between the parties for the sale and purchase of the land in the bill and proceedings mentioned, was sufficiently evidenced by the deed of the appellant, made and signed by him on the 21st May 1827, to relieve the case from the operation of the statute of frauds and perjuries. The Court is further of opinion, that as the application for a specific execution of a contract is addressed to the sound discretion of the Court, that he who asks it must have shewn himself prompt and willing to comply with the obligation of the contract on his part, and that the prayer will not be granted if it would be inequitable towards the party against whom the prayer is made. And it appearing that the appellee failed to comply with the contract on his part by paying up the whole of the cash payment at the time of the contract or afterwards, or paying or making any provision for the payment of the deferred instalment; and that for several years he *89was not in a condition to comply with the contract on his part; and it furthermore appearing that the appellant treating the contract as at an end, has proceeded to purchase land adjoining, and make improvements, which would render the specific execution of the contract unjust and inequitable towards him, it was not proper under the circumstances, to have decreed a specific execution in this case.
The Court is further of opinion, that the appellant in invoking the application of the principles of equity^to shield him from the consequences of a specific execution of the contract, must at the same time do equity, by restoring the amount of the purchase money actually paid to him: That by his failure to refund the same he kept the contract open and cannot now be permitted to rely on the statute of limitations to protect himself from a decree for the repayment thereof. The Court is of opinion that the Circuit court, instead of pronouncing a decree for a specific execution, should have rescinded the contract, and given the appellee a decree for the money paid, with interest. It is therefore considered that said decree is erroneous, and the same is reversed with costs. And this Court proceeding, &c., it is adjudged, ordered and decreed, that the contract between the parties for the sale and purchase of the tract of land in the bill and proceedings described, be and the same is hereby rescinded, and that the appellant do pay to the appellee 273 dollars 99 cents principal, with interest, &c.