When a contract for the sale of land has been consumated by the execution and delivery of a deed to the vendee, and he seeks to rescind the sale, such person must tender, or at least offer to make and deliver a deed or reconveyance.83 But the tender of such a reconveyance is not a condition precedent to the maintenance of a bill or action for rescission, it being sufficient if a proper deed is produced and tendered in court at the trial.84

The purchaser under an executory contract for the sale of land, if he wishes to rescind for fraud or misrepresentation, must first restore the possession of the premises to his vendor, or at least make an offer in good faith to do so.85 There is an exception to this rule where it is shown to be necessary for the purchaser to retain possession of the land for the purpose of securing his reimbursement or indemnity, as, for instance, where he has made costly improvements on the land,86 and in cases where the vendor is shown to be insolvent, so that the land itself is the only fund to which the purchaser can look for the return of his purchase money or the cost of his improvements.87

Where a contract for the sale of land is rescinded, at the instance of either party, the vendee having been in possession of the land under the contract, is accountable for a proper rent or rental value of the premises, or for the value of his use and occupation of them,88 and is usually reckoned as being equivalent to the fair or reasonable rental value of the land.89

83. Wilbur v. Flood, 16 Mich. 40.

84. Jandorf v. Patterson, 90 Mich. 40.

85. Maddock v. Russel, 109 Cal. 417; 42 Pac. 139; Loveridge v. Coles, 72 Minn. 57, 74 N. W. 1109; Cox v. Holkerboer, 200 Mich. 86. Plaintiff brought a bill in equity for rescission of a land contract, alleging fraud and false representations on the part of the defendant in regard to the character of the farm and personal property thereon. The bill did not allege an offer to restore possession of the farm nor a tender of the personal property, and the court held that plaintiff could not rescind while holding possession of the farm. Milbourn v. Maatsch, 211 Mich. 544.

86. Thompson v. Sheppard (Ala.), 5 So. 334.

87. Kansas Land Co. v. Hill, (Tenn.) 11 S. W. 797; Allbright v. Stockhill, 208 Mich. 469.

88. Allen v. Talbot, 170 Mich. 664; Hack v. Norris, 46 Mich. 587.

89. Allen v. Talbot, 170 Mich. 664.