If land has been conveyed and the purchaser fails to keep a promise made in consideration of the conveyance, the special right given by the vendor's lien is the only right the English seller has, other than an action on the contract for damages.4 But in the United States, in some cases at least, the vendor may obtain restitution by a bill in equity.5
Blay, 2 B. 6 Ad. 466, 462; DawBon p. Collis, 10 C. B. 523, 528.
4 Dart, Vendors & Purchasers (7th ed.), 729. See also, infra, Sec. 1470.
5 Priest v. Murphy, 103 Ark. 464,149 8. W. 98; Howlin v. Castro, 136 Cal. 605, 69 Pac. 432; Savannah, etc., Ry. Co. v. Atkinson, 94 Ga. 780, 21 8. E. 1010; Cooper v. Gum, 152 111. 471, 39 N. E. 267; McClelland v. McClelland, 176 111. 83, 51 N. E. 559; Domeracki v. JanikowBki, 255 HI. 575, 99 N. E. 579; Patterson v. Patterson, 81 la. 626, 47 N. W. 768; Clark v. McCleery, 115 la. 3,87 N. W. 696; Shepardson v. Stevens, 77 Mich. 256, 43 N. W. 918; Clough v. Hosford, 6 N. H. 231; Williams v. Noiseux, 43 N. H. 388; Pironi v. Corri-gan, 47 N. J. Eq. 135, 20 Atl. 218; Michel v. Hallheimer, 56 Hun, 416, 10 N. Y. S. 489; Wilfong v. Johnson, 41 W. Va. 283, 23 S. E. 730; Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118,57 L. R. A. 458. See also Ferris v. Hog-Ian, 121 Ala. 240, 25 So. 834. Even where a conveyance had passed, the vendor was allowed to treat it as null, thereby rendering a subsequent conveyance to another effectual, in Thompson v. Westbrook, 56 Tex. 265, and Kennedy v. Embry, 72 Tex. 387, 10 S. W. 88. But these cases were questioned in Huffman v. Mulkey, 78 Tex. 556, 561, 14 S. W. 1029, 22 Am. St. Rep. 71; and are opposed to Mo-
Cardie v. Kennedy, 92 Ga. 198,17 S. E. 1001, 44 Am. St. Rep. 85; Scott's Heirs v. Scott & M'Clure, 3 B. Mon. 2; Reader v. Reeder, 89 Ky. 529, 12 8. W. 1063; Shepardson v. Stevens, 77 Mich. 256, 43 N. W. 918; Pinger v. Pinger, 40 Minn. 417, 42 N. W. 289; Lathrop v. Mayer, 86 Mo. App. 355; Pironi v. Corrigan, 47 N. J. Eq. 135,20 Atl. 218; Michel v. Hallheimer, 56 Hun, 416, 10 N. Y. S. 489; Wilfong v. Johnson, 41 W. Va. 283, 23 S. E. 730; Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118, 57 L. R. A. 458. In most of the cases in this note the consideration for the conveyance was a promise to support the grantor. If possession has been given, but no conveyance passed, ejectment or trespass will lie against the defaulting purchaser. McDaniel v. Gray, 69 Ga. 433; Graves v. White, 87 N. Y. 463.
In Holloway v. ftnith, 196 Ala. 118, 73 So. 417, land was conveyed in consideration of an oral promise by the grantee to build a house thereon. The court dismissed a bill alleging breach of the promise and praying that the land be charged with the cost of the agreed house or that the conveyance be set aside. The court regarded the relief as precluded by the section of the Statute of Frauds relating to oral trusts of land, confusing a constructive trust (where the parties make no agreement for a trust, but where th.e law stantial failure by the defendant is insufficient;8 and if a purchaser has had possession of the property his right to recover the purchase price paid is subject to reduction to the extent of the profits, if any, realized by him from the use of the property.9 Where money has been paid for a promised conveyance of land, the right of the purchaser to rescind the contract for breach of contract must be qualified by the doctrines elsewhere referred to that time is not ordinarily of the essence in equity;10 that to a greater or less extent the relation of the parties has been treated as analogous to that of mortgagor and mortgage; 11 and that equity does not ordinarily require a vendor to perfect his title until the time of making a decree.12 The contract itself may provide the contingencies on which restitution shall be allowed and such a provision will be enforced.18 If a claim has been released, for a promised consideration, which is not given, the claimant under the same principle as is applicable to the recovery of money paid may treat the release as rescinded and recover on the claim.14