Page:North Dakota Reports (vol. 1).pdf/443

 comes without the general rule, and requires the application of different principles. In this we think he is correct. The hardship of the rule that would allow a grantee to recover the full purchase price with interest and still retain the land, has been very frequently discussed and regretted by courts. In this case respondent seeks to avoid the hardship of the rule by claiming that, if plaintiff recovered the full amount of the purchase money and interest, thereby the conveyance from the defendant to the plaintiff becomes a nullity; that defendant receives back his land, plaintiff recovers his consideration, and thereupon the parties are left in statu quo. This doctrine has been sometimes announced by the courts, but it is strictly limited to one class of cases, and those are cases wherein. there has been a total breach of the covenant—wherein nothing, in fact, passed to the grantee; and while it would be true that the grantor could not aver against his own deed, yet the grantee could do so, and if the grantee avers that there has been a complete breach of the covenant, and that nothing in fact passed to him by the conveyance, and if such averments are verified by the decision of the court and thereby become matters of record, the grantor can thereafter take advantage of the record, and can re-enter, and the grantee will not be heard to set up the conveyance by way of estoppel. See Porter v. Hill, 9 Mass. 34; Foss v. Stickney, 5 Greenl. 390. In this case, however, there is no allegation that no interest passed by the deed On the other hand the complaint is pregnant with the thought that some estate did pass to the grantee, and the findings show that the full equitable title—everything but the mere legal title—passed to the grantee, that possession passed, and that such possession has remained undisturbed, and no hostile title has ever been in any Way asserted. The record thus made would negative the idea that the grantee took nothing. It is perfectly clear that he took a very valuable interest. No reconveyance is tendered. The judgment on such a record would be no authority for the grantor to re-enter; so that in this case it is entirely clear that whatever estate was conveyed to the grantee still remains in him, and will remain in him after final judgment in this case. Hence he will have the full beneficial interest in the land, and also whatever