Donaldson's Adm'r v. Waters' Adm'r

A. J. WALKER, C. J. No decision of this court is infringed, and no principle violated, by maintaining that [116] the purchaser of land, under a verbal contract, cannot recover back the purchase-money paid, when he has gone into and enjoyed the possession for many years, unless the contract is rescinded. — Donaldson’s Adm’r v. Waters, 30 Ala. 175; Waters v. Spencer, 22 Ala. 460; Gillespie v. Battle, 15 Ala. 276 ; Rhodes v. Storr, 7 Ala. 346; Bates v. Terrell, ib. 129; Johnson v. Hanson, 6 Ala. 351; Cope v. Williams, 4 Ala. 362; Castleberry v. Pierce, 5 S. & P. 150; Meredith v. Naish, 3 St. 207; Allen v. Booker, 2 St. 21. The decision in Donaldson’s Adm’r v. Waters, supra', clearly asserts the proposition, that the plaintiff in this case cannot recovei’, unless he shows that there has been a rescission of the contract of purchase; and by .that decision we are content to abide. The rescission of the contract is a part of the plaintiff’s case, and the onus of proving it is upon him. Unless it was shown, he had no right of recovery. [2.] If the plaintiff has shown a rescission, it resulted from the recovery of the land, with damages, from the widow of the plaintiff’s intestate before the commencement of this suit, and the assent on the part of the plaintiff to the repudiation of the contract, supposed to have been thus manifested. Whether or not the act of recovering the land and the mesne profits was a repudiation of the verbal contract of sale, which the other party could elect to regard as a rescission, must necessarily have depended upon the terms of the contract. The recovery of the land may have been consistently with the terms of the contract, for the purpose of obtaining payment of the purchase-money yet due; or it may have been for the purpose of preventing an adverse possession from ripening into a title, which would deprive him of the ability to comply with his contract to convey. This is precisely the view which was taken of this question in Waters v. Spencer, 22 Ala. 460 ; and we think it was correct. It is no reply to this argument, that the vendor had a legal right to recover the land, no matter what were the terms of the verbal contract, and whether such recovery was or was not consistent with it; for the question is not, whether he might, in violation of the contract, have en [117] tered upon the land; but whether he has violated the contract, and thereby abandoned it, and given the other party a right to treat it as at an end, and to recover back all that had been paid on account of it. Unless the recovery of the land and the mesne profits was inconsistent with the terms of the contract, there was no repudiation of it, and no corresponding right to treat it as rescinded. All the rulings of the court below, which are assigned for error, were consistent with this view of the law, and we must hold those rulings correct. Judgment affirmed.