The contract in question was not in its inception absolute, but conditional. The purchaser made a deposit of five hundred dollars; the sellers were to furnish abstract of title to the bargained premises, which purchaser was to have ten days to examine; then it contained the express provision that if, upon such examination, the title proved to be invalid, the sale was to be nu.l and void, and said deposit was to be refunded. The abstract was furnished, truly representing the state of the title, which it is stipulated in the case was good, unless the Gage decree in the foreclosure suit respecting other property, was a lien. Ia lien, it practically affected two lots of the three contracted for to the extent only of a contingent possibility of their being subject to make up any deficiency there might be in case the mortgaged premises proved insufficient on Master’s sale to satisfy the "whole amount found due by said decree. The purchaser’s counsel having after examination pronounced the title good, we are of the opinion that the purchaser, in thereupon, laving the contract recorded in the recorder’s effice of the countjr; in proceeding with a partial execution of it by paying two thousand dollars upon the first ¡layment, obtaining an extension of the time of the payment of the residue till the thirteenth of August, 1870, by a written modification of the contract; by taking possession of the premises, causing material alterations as to part of the premises, and collecting the rents for three months upon the residue, thereby in the most emphatic manner treating it as valid and subsisting, is precluded from taking the position that the contract remained conditional, and that the case should now be determined in the same way as it would if sucn purchaser, upon such examination of the abstract, had then objected to the title, and brought suit to recover back the deposit as money had and received to its use. In such an action the right of recovery would, doubtless, depend upon the actual state of the title at that time. But this suit is brought to recover back purchase money paid by the plaintiff after it had approved the title and treated the contract as valid and subsisting as above stated; the legal effect of which must be to convert such orig iually conditional contract into an absolute one; but not to absolve the sellers from their obligation under such absolute agreement to convey to the purchaser at the proper time a good title to the bargained premises free of incumbance, if that was the legal effect of such obligation. There are decided cases which seem to go the length of holding that a purchaser thus conducting would be considered as having waived all objections to the title. Barnet v. Gaines, 8 Ala 373; Roach v. Rutherford, 4 Desaus. 126; Burnell v. Brown, 1 Jac. & W. 168; Fluder v. Cocker, 12 Ves. 25; Calcraft v. Roebuck, 1 Ves. jun. 226, note 2.
We are, however, not incliuod to go that length in the effect we give to such acts, only regarding them as amounting to a conclusive recognition by the purchaser of the valid and subsisting character of the contract, as absolute, with the condition thus waived, the same as if it had been made in the first instance without such condition, and its terms just as binding and obligatory. By those terms, as modified, after the approval of the title by the purchaser, the latter was bound to pay the balance, being $6,500, of the first payment on the 13th day of August, 1870; also to prepare and offer the notes for the deferred payments, with a mortgage or trust deed; at which time the sellers, as we construe the agreement; were to execute the deed in pursuance of their agreement, which required, as we are inclined to hold, that a conveyance of a good title free of incumbrance, should be made. This conclusion we base upon the intention of the parties and the words employed The five hundred dollars was to be received on account of the cash payment, on the purchase of the following described propevty. The money was to be paid, not for a deed of a particular form, but for the property itself.
Then the last clause of the agreement is: “The said Germania Turn Yerein to receive a good and sufficient warranty-deed, executed by the owners in fee of said property.”
This agreement seems to us unlike any that lias received the condsideration of our Supreme Court; and, acting upon the decisions in other States, we are strongly inclined to the opinion that the legal effect of the agreement was that the sellers should convey a good title to the property, free of incumbrance. Clute v. Robinson, 2 Johns. 213; Carpenter v. Bailey 17 Wend. 244; Burwell v. Jackson, 5 Selden, 535; Mead v. Fox, 6 Cush. 199; H ll v. Hobart, 16 Maine, 164.
We have seen that by the modification (which was made July 14, 1870,) the payment, which, as the agreement originally stood was to be made in cash, no time being specified became payable at a particular day in the future; at which time the purchaser was also to give the notes, mortgage, etc., for the deferred payment; and at the same time the sellers were to execute their deed. These acts were therefore mutual, dependent and concurrent. It was like the ordinary agreement between seller and purchaser of real estate, where the conveyance was to be made joneurrently with the payment and security of the purchase m mey, at a particular future day. There was nothing express or implied in or from the agreement, to take the case out of th 3 general rule applicable to such cases. The seller was not bound to be actually in a situation to perform, either at the time the contract was entered into, or at the time said modification was made.
If, therefore, there had been imperfections in the seller’s title, at either of those times, Ihe purchaser could take no advantage of them, provided the former were able, in proper time, to place themselves in a situation to perform. Thompson v. Miles, 1 Espinasse R. 184.
Chi tty says: “ But it is not necessary that the vendor should be actually in a situation to perform his contract at the time it is entered into, provided he be able, in proper time, to place himself in that situation. And therefore the fact of there being imperfections in the title at the time of the contract will form no ground of objection thereto, if such i mperfections can be removed before the time of completing the purchase.” Chit, on Contracts, 10th Am. Ed. 336.
This rule is elementary in the law of the contract, and has been repeatedly recognized by our Supreme Court. Mason v. Stevens, 56 Ill. 335.
In bills by vendors for specific performance it is the universal rule, that if the seller can give a good title at the time of the decree, it is sufficient.
There is no pretense in this case of any fraud on the part of the sellers, or that the contract was rescinded by any express mutual consent. If, therefore, a rescission is to be made out at all, it must be solely upon a constructive assent arising from a breach of the contract by the sellers, in that, upon an offer of performance by the purchaser, and demand of deed, the sellers neglected or refused to perform, or that they had incapacitated themselves from performing by conveying their title absolutely to a third person. In Franklin v. Miller, 4 Ad. & Ell. 599, Coleridge, J., said: “The rule is, that in rescinding as in making contracts both parties must concur. In Withers v. Reynolds each load of straw was to be paid for on delivery. When the defendant said that he would not pay for his loads on delivery, that was a total failure, and the plaintiff was no longer bound to deliver. In such case, it may be taken that the party refusing has abandoned the contract.” Planche v. Colburn, 8 Bing. 14. This doctrine of constructive consent to a rescission was recognized and applied in Banister v. Read, 1 Gilm. 99, and Baston v. Clifford, 68 Ill. 67.
It is not pretended that in the case at bar the sellers had incapacitated themselves by any disposition of the property, or that they ever refused to perform. On the contrary the case shows they had their deeds prepared and were ready and willing to perform.
Mow, we regard the law as well settled and clear, that in order to a rescission of a contract of sale and purchase of real estate, so that the purchaser may recover back purchase money as money had and received to his use, the latter must not only not be in default himself, b it he must show an entire breach on the part of the seller; in other words, he must be in such position in respect to perfoi manee on his part, and non-performance on the part of the vendor, that he can affirm the contract and maintain an action upon it against the vendor; or disaffirm it, and maintain an action for money had and received to his use. These propositions are supported by the cases of Ketchum v. Everstor, 13 Johns, 359; Green v. Green, 9 Cow. 46 ; both of which have been repeatedly cited with approval by our Supreme Court. Wheeler v. Mather, 56 Ill. Ill. 247; Bryson v. Crawford, 68 Ill. 366. See also Hanshough v. Peck, 5 Wallace, 497.
Sugden says: “Where the purchaser has paid any part of the purchase money and the seller does not complete his engagement, so that the contract is totally unexecuted, the purchaser may affirm the agreement by bringing an action for the non-performance of it; or he may disaffirm it and bring an action for- money had and received to his use.” 1 Sug. on V. & P. chap. 5, sec. 4, art. 39, p. 236.
As already stated, the purchaser here was bound to pay the balance, being sixty-five hundred dollars, to complete the first payment, which, with the-giving of the notes and mortgage for the deferred payments, was to be done on a particular day, at which time the sellers, as $, mutual dependent and concurrent act, were to execute the deed. It is not pretended in the case that the plaintiff was ready, willing, or offered to perform on its part at that time or any other; or made any demand for a deed in conformity with the contract or otherwise. Sergeant Williams in note 5, to Pordage v. Cole, 1 Saunders, 330, says: “ Where two acts are to be done at the same time, as where A covenants to convey an estate to B on such a day, and in consideration thereof .3 covenants to pay A a sum of money on the same day, neither can maintain an action without showing performance of, or an offer to perform his part, though it is not certain which of them is obliged to do the first act; and this particularly applies to all cases of sales.”
Where, under a contract for the sale and purchase of real estate, the purchase money is lo be paid or secured and the conveyance executed on a particular day, and neither party performs or offers to perform, neither party can maintain an action at law, without a tender of the deed by one party, or the purchase money by the other. Stevenson v. Maxwell, 2 Comstock, 408.
We understand the rule to be inflexible in a case like this-where the seller had not incapacitated himself from performing 3 by conveying to a third party after the contract (Sir Anthony Main’s Case, 5 Coke, 39) that, the purchaser, in order to put the sellers in default, should have offered to perform on its part, and made a demand for the deed of the sellers. Hudson v. Swift, 20 Johns 24; Burwell v. Jackson, 5 Seld. 535; Laird v. Smith, 44 N. Y. 618; Foster v. Jared, 12 Ill.; Doggett v. Brown, 28 Ill. 495.
It is idle to talk about it being unsafe for this purchaser to proceed with the performance of the contract; for, when they were ready and offered to perform, if the sellers had not then such a title as they agreed to give, the purchaser need not part with his money. It is the object in making such acts of payment and conveyance mutual, dependent, and to be simultaneously performed, that the purchaser need not part with his money, unless he can get the title bargained for; and that vendor need not part with his title, until he receives the consideration.
It seems perfectly clear to ns, that here the contract was not rescinded by mutual consent either actual or constructive because the sellers did not incapacitate themselves from performing; never refused to perform, and they were not put in default by an offer and demand by the purchaser.
There is another'point made, which is not very material in the view we have taken of the case, and that is that the sellers could not, under the circumstances, be placed in statu quo, or at least that they were not before suit brought, - because the purchaser never quit-claimed back itó equitable title apparent on the record until during the last trial of the case. As to the general doctrine, Hunt v. Silk, 5 East, 449, is a leading case.
The contract being recorded, it was a cloud on the seller’s title. Larmon v. Jordan, 56 Ill. 204. Appellee’s counsel seems to concede that such quit-claim was indispensable to a rescission, but insists that .’.t might properly be done on the trial, and need not be before sui t brought. That cannot be the law. The right to rescind must be complete before bringing the suit; and wherever restoration is indispensable to a rescission, it must be made before suit is brought. Horton v. Young, 3 Greenleaf, 30. The judgment of the court below will be reversed and the cause remandsd.
Reversed and remanded.