REID v. DAVIS, 4 Ala. 83

COLLIER, C. .T. 1. The fact that the defendant below never was in the actual occupancy of the land which he had purchased, cannot relieve him from liability to pay the purchase money. His contract gave him the right of entry and enjoyment, and these invested him with the constructive possession. [Bliss’ adm’r v. Yancey, 1 Ala. Rep. N. S. 273; Clements v. Loggins, 1 Ala. Rep. N. S. 622; Fitzpatrick et al v. Featherstone & McDougald, 3 Ala.

Rep. 40.] ft is not pretended that there was any adverse occupancy; and this being the case, it ■was not incumbent on the plaintiff to put the defendant into the actual possession; nor will the omission of the latter to take possession of the land, or its mere abandonment after-wards, operate a rescission of the contract. [Clay et al v. Dennis, use &c. 3 Ala. Rep. 375.] The charge of the Court on this point then, was unobjectionable; it very properly supposed the contract to be in full force, and on that hypothesis informed the jury that the want of actual occupancy did not constitute a bar to a recovery. 2.

The condition of the plaintiff’s bond did not oblige him to complete the defendant’s title by any definite time, but when lie should obtain a patent for the land from the United States. This was an undertaking to do

an act upon an event which would happen, but the time when was uncertain; and before the obligor can be put in default for its non-performance, it must appear that the event has actually taken place, or has (at least,) been delayed by his act or omission. The evidence recited in the bill of exceptions does hot show the plaintiff has done, or omitted to do, any thing to prevent the issuance of a-patent according to the regular order of business in the Land Office; and in the absence of all proof, we must intend that no fault is attributable to him.

We must then suppose that the demand of a title was premature, and its refusal under the circumstances can avail nothing. In Clements v. Loggins, [1 Ala. Rep. N. S. 622,] it was held that a vendee of land may tender the purchase money according to his contract, and demand title, and if the vendor refuses to make title, the vendee 'may abandon the possession and thus rescind the contract; but a mere abandonment of the possession is not of itself sufficient to rescind the contract.

When the same case was before the Court'subsequently, it was decided, that to entitle the vendee to a rescission of the contract, the tender of the money and the demand of title must be made after the day stipulated for making the title, has arrived. [2. Ala. Rep. 514; to same effect is Steele v. Kinkle and Lehr, 3 Ala. Rep. 352.] In the case at bar, no tender of the purchase money was made, but a mere demand of a deed upon an offer to surrender the bond.

If the defendant could, at his election, under any circumstances, rescind the contract for the refusal of the plaintiff to make a title, where the money was not tendered, a conclusion which we do not admit, he certainly could not in the present case, when the plaintiff was under no obligation to yield to his demand. Where the vendor of land executes a bond, conditioned to make title to the vendee generally, and the vendee, in consideration thereof, makes his note payable to the vendor on a day certain, the failure to complete the title is not in itself a bar to an action on the note. [George & George v.

Stockton, 1 Ala. Rep. 136 ; Stone v. Gover, ibid, 287. And a vendee who holds the bond of his vendor, conditioned for the conveyance of title upon a future event, which has not happened, cannot occupy a more favorable position. 3. It is scarcely necessary to say, that as the plaintiff was not in fault for not making a deed when demanded, the refusal to execute it, was not such a fraud upon the defendant as authorized him to rescind the contract. We are unable to discover any error in the proceedings of the Circuit Court, and its judgment is consequently affirmed.