have been so, as far as Roberts and A. T. Nation were concerned, in view of the circumstances under which they acted, and the ownership of the money used by them, but certainly not as to the plaintiff, who appears to have acted all through the matter in entire ignorance. of those facts. Since this was the case, exhibit B could no more operate as an assignment of exhibit A than any mere subcontract by a vendee to sell the same premises; for an agreement for the subsale of the same premises will not make the subvendee assignee of the original contract. (Willard v. Taylor, 8 Wall. 571; 2 Dart on Vendors, 4th ed., 925.)

It is also argued, for the appellants, that when a vendee is in default, so that the vendor may elect to rescind the contract, he must, in order to effect a recission of it in an action like the present one, restore to the vendee all that he has paid upon the contract. This is undoubtedly the rule regarding the rescission of contracts. (Civ. Code, sec. 1691; Miller v. Steen, 30 Cal. 403; 89 Am. Dec. 124; Bohall v. Diller, 41 Cal. 532; Henderson v. Hicks, 58 Cal. 364; Wilson v. Sturgis, 71 Cal. 226.) But this action was not brought for the rescission of a contract, which means the annulling or abrogation of it, and the placing of the parties to it in statu quo. The object of the action was to quiet plaintiff's title to the land, under section 738 of the Code of Civil Procedure. He alleged in his complaint all that was required under that section,his right, and the invasion of it,-viz., his ownership of the land, and the defendants' unfounded adverse claims respecting it. It was not incumbent upon him to go further, and disclose the nature of the defendants' several claims. That was for them to do, or be precluded from asserting them in any other form of action. (People

v. Center, 66 Cal. 551.) The appellants, however, elected to set up their respective claims in their cross-complaints. Neither of the cross-complaints, though, alleged facts

which, if proved, would have warranted a decree compelling the plaintiff to specifically perform exhibit A.

There is no allegation in either of them of a tender of the balance of the purchase price, under exhibit A, by the California Land and Timber Company, or any of the appellants. Kohler, the assignee of the insolvent corporation last named, alleged, as a reason for not tendering the remainder of the purchase-money, that plaintiff had not obtained patents from either the United States or this state, although often requested so to do, and was therefore unable to perform exhibit A upon his part; and that he had never offered to return the money paid him under said exhibit to A. T. Nation, Roberts, or G. M. Nation; and prayed that plaintiff's interest in the lands be foreclosed, and the latter sold, and the proceeds applied, first, to the payment of the last installment due under exhibit A, and the remainder delivered to the said assignee.

Craig's (the receiver's) cross-complaint was based upon the same theory as that of the assignees, except that he asked for no affirmative relief. Fry and Higgins, the trustees, who base their claim of title to or interest in the land solely upon the assignment of exhibit A to the company, which was in fact not made, alleged, in their cross-complaint, that plaintiff had not furnished to Roberts, the California Land and Timber Company, or themselves, a clear title to the lands, based on patents from the United States or the state of California; that they (the last-named defendants) were ready and willing, as soon as such patents should be obtained, to pay to plaintiff the third installment due under exhibit A, together with interest thereon; and that the United States and this state were ready and willing to patent the land to plaintiff; and prayed that they be decreed the owners of the premises against the other defendants, and also the plaintiff, subject, however, to the latter's right to the

payment of the third installment under the contract, before making a conveyance of the land to them.

Thus it should appear that the claims of the assignee of the insolvent company and the receiver were, by their respective pleadings, made to depend upon the truth of their allegations, to the effect that the plaintiff never notified any of the defendants of his ability to perform, nor made any offer to perform, the contract upon his part; and that the claim of the trustees Fry and Higgins was made, in like manner, to depend upon their allegation of the plaintiff's inability to perform the contract, on account of his failure and refusal to obtain the title stipulated for in the contract, upon the obtaining of which they (the trustees) were ready and willing to pay the remainder of the purchase price. Now, according to the agreement (exhibit A), plaintiff had two years from March 15, 1886, the date thereof, within which to perfect his title to the land, by procuring patents from either the United States or the state of California. This the court found he did do in July, 1887, which was within the time limited, and during the same month notified Roberts and A. T. Nation of the fact, and at the same time tendered them a sufficient deed to the land, and de manded of each of them the balance due him under exhibi A, which they refused and neglected to pay.

Appellants do not attack this finding. Indeed, in view of the evidence, it could not be successfully assailed. This finding, then, negatives and disposes of the positions assumed by Kohler, as assignee, and Craig, as trustee, and upon which they seem to have been willing that the case should turn as to them. It also, in addition to the further finding,-which is likewise unassailed and unassailable, that Fry and Higgins never, for themselves or any one else, demanded a deed to the land, or offered or were ready or willing to pay the remainder due under exhibit A, as effectually negatives and disposes of the main position assumed by Fry and Higgins

as trustees. They, in their attempt to show their derivative right or title to the land, by virtue of the assignment of exhibit A to the company, completely failed, and also in their attempt to show that the plaintiff was in default. They therefore failed to prove any title or interest in the land under exhibit A. All that Craig, the receiver, could, in any event, recover in the action was the possession of the land. This appears to be conceded. There was no stipulation in the contract exhibit A surrendering the possession of the property to the vendee; and unless there is such a stipulation in a contract like the one mentioned, it may be considered as settled in this state that the vendor retains the possession until the legal title passes to his vendee. (Gaven v. Hagen, 15 Cal. 208; Gates v. McLean, 70 Cal. 49.) Hence it was necessary for Craig to show, as such receiver, a performance of or offer to perform the contract by the vendee or his assigns or himself for the benefit of the parties whom he represented as receiver, so that the court might have compelled the plaintiff to convey the legal title to the proper party, which would have carried the right of pos

session.

As no such state of facts was shown to exist, we think he failed to establish any interest in the premises. Kohler, as assignee, in addition to showing his alleged interest in the land, was required to prove that the plaintiff was in default, before he could demand that the lat ter's interest in it should be foreclosed, and the land sold, and the surplus of the proceeds, over the amount of the last installment due plaintiff under exhibit A, paid over to him. Having, like his co-defendants, failed to show any interest in the land, and that the plaintiff was in default, the relief he sought was properly denied. If the several cross- complaints had alleged the facts as they were disclosed by the evidence, they would have been insufficient to have entitled the appellants to any relief. (Hicks v. Lovell, 64 Cal. 20; 49 Am. Dec. 679, and cases

there cited; Gates v. McLean, 70 Cal. 49; Pennie v. Hildreth, 81 Cal. 127.)

It is true that, in an action by a vendor against a vendee to foreclose the latter's interest under the contract, when the vendee is merely in default, as was said in Hansbrough v. Peck, 5 Wall. 506, "the court will usually give him a day, if he desires it, to raise money, longer or shorter, depending upon the particular circumstances of the case." But, as we have seen, the appellants here, though they might have had such an advantage, did not frame their pleading so as to avail themselves of it; but, on the contrary, the trustees framed theirs so as simply to defeat the plaintiff's action, and not to obtain affirmative relief for themselves, while the receiver and assignee pleaded their own inability to complete the purchase.

This state of the pleadings, considered in connection with the evidence, which shows that, even if the plaintiff had been cognizant of all the facts which appellants claim made the company the real vendee under or assignee of exhibit A, the company, as well as all the appellants, were in default under that contract, and refused to fulfill it upon their part, while the plaintiff, on his part, was not in default, but ready, able, and willing to comply with it. Therefore we think it plain that there was no rescission of the contract pleaded or shown by the appellants under which they could claim a return of the portion of the purchase price paid, but that there was a voluntary abandonment upon the part of appellants of whatever interest they may have been entitled to under exhibit A.

The contract having been thus abandoned by them, they cannot complain that it results in the retention by the plaintiff of the amount paid under exhibit A, for, as was said respecting a contract for the sale of land in Ketchum v. Evertson, 13 Johns. 359, 7 Am. Dec. 384, "it may be asserted, with confidence, that a party who has

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