John H. Hines v. A. C. Baine, et al., 1 Miss. (S. & M. Ch.) 530

Chancellor. This is a bill for the specific performance of a contract, for the sale of two lots of land in the town of Grenada. The complainant bought the lots of P., and L. H. Bryant, gave his notes for the payment of the purchase-money, and took their bond to make titles upon the payment thereof, which he now offers to do. The defendants, Baine and Morton, admit, they subsequently purchased the lots from Bryant, with notice of his previous sale to complainant, but say, that they were informed, that Hines had not complied with his contract.

Bryant insists in his answer (although nothing of the kind appears in the bond) that, if the purchase-money was not paid punctually, the sale was to be void ; that it was not so paid, although demanded. There is no proof in reference to either of these facts, either as to the terms of the contract, or the demand of the purchase-money. The introduction of the bond for title is objected to, because it is but a copy from the record of its registration. This is expressly made evidence by the statute of 1837. How. and Hutch. 610.

If the defendant intended (as intimated in his answer) to deny that it is a true copy, he should have applied for a rule to compel the production of the original. I think, that Bryant was not at' liberty to elect to consider the contract as rescinded. Although a contract may be rescinded by one party by acts in pais, yet, where such is his intention, he must give notice of it, and must put the other party in default by offering to comply fully with his part of the- contract.

In this case, the covenants are mutual and dependent, and before Bryant could absolve himself from the contract, he was bound to have tendered a deed, or at least offered to convey upon the purchase-money being paid. Hudson v. Smith, 20 John. Rep. 27. There is nothing in the case going to show that there was either an offer to convey title, or that there was a demand of payment of the purchase-money, or that the complainant had any notice of the intention of his vendor, to abandon or rescind the contract. It is not necessary, that L. H. Bryant should be a party.

The legal title to the lots is in Baine and Morton, and they- having received that title with notice of the complainant’s prior equity, they became trustees thereof for his use, and will, upon well settled principles, be compelled to convey it to him. Sims v. Richardson, 2 Littell, 276.

Let a decree be prepared, in accordance with these views, appointing a commissioner to convey the legal title, upon the complainant’s filing with the clerk of this Court a receipt for the payment of the purchase-money, or depositing the same in Court, and directing the complainant’s bill to stand dismissed, if he fails, within 90 days from the date of the decree, to comply with the terms thereof.