The defendant, in the year 1877, sold to plaintiff the tract of land described in the complaint, and executed and delivered to her his bond for a deed. One half of the agreed purchase price was paid by plaintiff about the time of the purchase.. Plaintiff went into possession, and remained until March 1, 1886,, when she elected to rescind the contract, abandoned the premises,, and brought this action to recover damages because of the failure' and inability of defendant to convey a good title in accordance with; the conditions of his bond. In this instrument it was stated that: the premises to be conveyed were the same deeded by one Porter and his wife to Joseph Nadeau in the year 1874, and by said Nadeau and his wife to defendant, April 4, 1876. At the date of conveyance to defendant, Nádeau was a married man, as defendant well knew, but his wife at that time refused, and she has ever since refused, to join in the deed, or to consent in writing to the same. By reason of this refusal, defendant’s title to the premises was and; has remained defective, subject to the inchoate interest and estate-of Nadeau’s wife known as the “dower right.” In 1882, the plaintiff, desiring to make substantial improvements on the land, offered! to pay the balance of the purchase price to defendant, providing he would convey a good title to her, but, discovering the defect-before mentioned, she refused to accept his deed solely because of such defect. Thereupon the defendant assured her that he could *306and would secure a further and sufficient conveyance from Nadeau and his wife, so as to perfect his own title, and would convey the same to plaintiff, and that she could safely make the proposed improvements. At this time the balance of the purchase price was not due, although plaintiff, at her option, could pay it. Relying upon the statement in the bond as to the source of title, and representations that the defendant was able to convey a good title to the land, the plaintiff was induced to purchase; and, relying upon his further statements and representations that he could and would perfect his defective title, as well as upon the original statements and representations, the plaintiff placed betterments upon the, land in 1882 at a cost of $800, as was found by the court. She had also, while in possession, paid the annual interest on account of the deferred purchase-price payment, and had also paid the taxes as they fell due for several years.
The defendant was unable and has refused to perfect his title by deed or otherwise, and in March, 1886, as before stated, plaintiff took such steps as were essential to rescind the contract to purchase, and brought this action. This appeal is by plaintiff from a judgment entered in conformity with the findings of fact and conclusions of law of the trial court.
When ordering judgment for plaintiff, the court below recognized her right to recover the amount paid as part of the purchase price, with interest from the date of payment, and to recover the amounts she had paid as interest upon the deferred payment, and to recover the amounts paid for taxes. As against those sums it offset the rental value of the premises while plaintiff held possession. No interest was allowed her upon the amounts paid as interest on the deferred purchase-price payment, nor upon the sums annually paid as taxes, nor was interest allowed to defendant upon the amounts determined to be due to him as annual rental. Nor was anything awarded to plaintiff as compensation for the improvements placed upon the premises in 1882. The refusal of the court to allow for improvements was based on the fact that plaintiff made no effort to prove the value or worth of the same to the land at the time of the rescission. Their cost four years earlier had been established, but there was nothing in the pleadings or proof from which their worth to the land, when plaintiff elected to rescind and abandoned *307the premises, or, rather, in what amount these improvements had enhanced the value of the land, could he determined. The correctness of this view of the law is the principal question before us, the other questions being in reference to the right of plaintiff to recover interest upon the amounts paid as interest and for taxes, and whether defendant should be allowed interest upon the annual rental value of the land.
Where there is a rescission of a land contract because the seller is unable or refuses to convey a good title, the purchaser should certainly be put in statu quo, as nearly as possible. Literal restoration seems impossible when the contract has been acted upon, payments made, possession enjoyed, and permanent improvements placed on the premises. When the damages are capable of measurement, the doctrine requiring that there be awarded to the injured party compensation equivalent to the actual damages he has sustained is not, in a case like this, at all inequitable. Indeed, it is obvious that in no other manner could justice be done to the plaintiff; and it was said in Erickson v. Bennet, 39 Minn. 326, (40 N. W. Rep. 157,) that, generally, where one contracts to convey real estate, knowing that he has no title, and cannot perform his contract, the recovery is not limited by the technical rule of damages usually applicable in actions upon the covenants in a deed of conveyance, but that it is measured by the broader rule of compensation generally applied in cases of breach of contract and of fraud. The statements and representations as to title and source of title, and his ability to convey, before mentioned, were relied upon by plaintiff, and induced her to purchase, and in good faith to make permanent improvements. They were false, and defendant knew, or should have known, of their falsity. They amounted to a fraud upon the plaintiff. The defendant cannot complain if he be required to compensate her and make good the loss. But the amount which plaintiff lost because deprived of her improvements was not what they cost in 1882, but was what they were worth to the land when she was compelled to remove from the same; that is, the amount the land was permanently enhanced in value thereby. To illustrate: The value of the dwelling house rebuilt by the plaintiff could not be increased or decreased in value by defendant’s course. Had he complied with his contract, the *308house would have been worth no more and no less than it was when he refused to perform. In either event its present value would have been the same. Had the plaintiff lost it by the elements on the day she gave it up her loss would have been its value, not .what it cost. That she was deprived of it through defendant’s fault, and not by the elements, cannot augment the amount of her loss, nor increase the compensation she should receive therefor. If, then, the true measure of damages in such cases be compensation, the trial court did not err when refusing to allow to plaintiff the cost of her betterments.
The generally accepted and proper rule, in our opinion, where there is a rescission of a contract for the sale of land for want of a perfect title, is that improvements put on the land in good faith by the purchaser must be accounted for, in so far as they may at the time of the rescission permanently enhance the value of the land. Winters v. Elliott, 1 Lea, 676; Mason v. Lawing, 10 Lea, 264. See, also, Davis v. Strobridge, 44 Mich. 157, (6 N. W. Rep. 205;) Sheard v. Welburn, 67 Mich. 387, (34 N. W. Rep. 716;) Harris v. Harris, 70 Pa. St. 170.
J3ut counsel for appellant argue that the theory of the rule is such as to cast upon the plaintiff all of the loss from the effect of the elements upon the improvements, and at the same time she is adjudged liable to defendant for the rental value therefor, because full rent presumably includes payment for depreciation in value through ordinary wear and tear. If there is anything in the record to justify the claim that, when determining the rental value of the premises allowed defendant, the court below included the rental value of plaintiff’s improvements, there would be force in the argument, but there is not. The court should have fixed the rental value of the land alone, — the property the defendant sold, agreed to convey, but did not. The law requires the purchaser to account to the seller for the rental value of the premises sold, and of which .the former has. had possession. We cánnot assume that the trial court improperly assessed the rental value under a misconception of the law, for there is nothing in the record to indicate it, and the presumption is the other way. Again, the rental value per annum was fixed by the court at the same for each of the five years preceding the making of the improvements as it was for *309each of the years subsequent thereto, and this tends to demonstrate that the value of the use of the improvements was not included.
The plaintiff was entitled to recover interest upon the sums paid as interest upon the deferred payment, and also upon the amounts paid for taxes. This must follow from the fact that she can recover the amount of the payments; and as against these various sums the defendant can offset and recover the annual rentals with interest from the end of each year of plaintiff’s possession.
There could be no serious obstacle in the way of a modification of the judgment so as to allow to the respective parties interest as above indicated, but, in our opinion, justice requires that the case be remanded for a new trial. It is so ordered.
Judgment reversed.
Vanderburgh, J., took no part.(Opinion published 55 N. W. Rep. 129.)