The first question presented is, whether this cause was submitted on the motion to dissolve the injunction, or upon its merits. The order of submission is this : “ This cause is submitted to the judge upon brief, to be decided at chambers in vacation ; order and decree may be entered of this or next term as to the court may seem just and equitable.” What was submitted? The cause and not the motion alone. What was to be decided ? The cause as well as the motion. The cause was the suit in all its parts, including the motion as well as all other questions. The bill had been filed, the answer interposed, and affidavits supporting each, produced, and it was upon this state of facts that the cause was submitted. And whatever may have been the design of the parties, the order of submission will not bear the construction that the motion to dissolve the injunction was alone submitted. There was therefore no error in trying the case on the merits.
But it remains to determine whether the court below erred in the decree which was rendered. When the agreement was made to rescind the contract, reconvey the property and to pay rent by the complainant, satisfy the judgment and cancel the note, by defendant below, a horse was paid as a part of the consideration. It was appropriated on the rent under the new agreement, and not upon the price of the property. As far as it applied it was a part performance of the new agreement, and as no time seems to have been fixed for a reconveyance, each party had a reasonable time within which to perform his part of the contract. And to put the other in default he should have offered to perform on his part. And then to have rescinded he should have refunded what had been received on the agreement.
In this case appellant retained the horse, without an offer to perform or restore it to the appellee. He cannot be permitted to retain, all of the benefits resulting from the contract, and yet repudiate and avoid its performance. Unless he had rescinded the contract, appellee had a right to enforce its specific performance, and appellant having failed to* rescind, he must be held to its performance, unless appellee has been guilty of laches that render it inequitable to insist upon its enforcement.
It is however urged that as appellee failed to make a tender of the deed, and is in default, he cannot have the relief sought. In the case of Webster v. French, 11 Ill. 254, it was held that a court of chancery is not bound by any fixed rule in relation to the tender of money, in bills, for a specific performance. That the court may order the money to be paid into court when the interest of the parties may require it. As this bill was for the specific performance of an agreement, no reason is perceived why a tender of the deed was essential to the relief sought, especially as the appellant had failed to offer to perform on his part, or to restore the horse and declare the contract rescinded. The evidence seems to rebut the supposition, that the appellant regarded the contract rescinded for the want of the immediate tender of the deed, as he afterwards offered both to sell and to rent the property. He'also repeatedly declared that it was his, and that the first contract had been rescinded.
On this entire record no error is perceived, and the decree must be affirmed.
Decree affirmed.