Opinion op the court by
JUD1GE GUFFY —Reversing in part.
The appellant instituted this action in the McCracken Circuit Court against the appellee, seeking to recover a judgment upon three notes executed for $500 each, subject to certain credits. The substance of the answer and *192counterclaim of the defendant is that the note» were given as part purchase money for certain town lots in Decatur, Ala., or, in other words, for lots in the 34 acres owned by the plaintiif, which seem to have been divided into town lots, and that the plaintiif falsely and fraudulently represented to the defendant that it would in the near future establish a street railway along and by said lots, and make various other improvements described in the answer, and that such representations were false and fraudulent, and so known by the plaintiff, but w’ere relied on by defendant, and but for the same he would not have made the purchase. He also denied the title of plaintiff to the lots in question. After the issues were fully made up, the court adjudged a rescission of the contract and cancellation of the notes, and rendered a judgment over against the plaintiff in favor of defendant for the amounts paid by him on the purchase aforesaid; and from that judgment this appeal is prosecuted,
It is insisted for appellant that the defendant could not be allowed to allege or prove a parol contract not embraced in the bond or writing executed in regard to- the sale of the lots, and numerous authorities are cited in support thereof.
It appears in this record that in October, 1891, the plaintiff instituted suit in the State court of Alabama for the purpose of obtaining a sale of the lots in question to satisfy the purchase money due thereon, and that such proceedings were had that a judgment was rendered adjudging the sale thereof, and that plaintiff purchased the lots at the price of $150, and obtained a deed therefor. But during the progress of this suit the plaintiff tendered a deed to the defendant for the lots in question, conditioned upon his paying the entire purchase money due. It is *193further insisted for appellee that the delay upon the part of plaintiff in tendering the deed td defendant should debar it from asking for a specific enforcement of the contract. It does not appear that defendant ever was in the actual possession of the lots in question, and it may be said that he was guilty of some laches in not bringing-suit for a cancellation of the contract on account of false representations made as alleged, or for defect in title.. It may also be said that plaintiff, by instituting its suit to enforce its lien upon the lots in question, without tendering a deed, was also guilty of laches, and it appears: that the defendant had no notice of said suit. It'is true that the bond executed did not bind plaintiff to make a deed to the lots until the purchase money was paid. Yet it would seem that, if plaintiff desired a specific execution of the contract, it ought to have tendered in its suit in Alabama a deed to the lots in contest. It can readily be seen that the lots would command but a small price unless the record showed that the supposed owner thereof had title to same. Taking all the facts and circumstances as shown in this case, we are of the opinion that the-contract between the parties should be considered as having been annulled or forfeited by the laches of each party, and that the plaintiff should be denied a right to collect the unpaid purchase money; and we are further of opinion that defendant, by his laches, has forfeited his right to recover back the money paid by him upon said contract. It seems that the opinions of this court in the cases of Ryan v. Middlesborough Town-Lands Co. (Ky.) 50 S. W. 13, and Coal Co. v. Ford, Id. 27, conclusively sustain appellants contention. The promise or representation in the case at bar, being in parol and to be done in the future, falls with*194in the rule announced in the cases supra. Hence it follows that the court should have sustained the exceptions to all testimony in support of that defense.
It is insisted for appellee that plaintiff could not maintain this action until it had first tendered to defendant a sufficient deed to the lots in controversy. The judgment of the court below is reversed in so far as it renders a judgment in favor of the defendant against the plaintiff for any sum of money paid by defendant upon the purchase of the lots in question. But the judgment as to the cancellation of the notes sued on, and for costs, is affirmed. ■Cause remanded for proceedings'consistent herewith.