Page:North Dakota Reports (vol. 48).pdf/693

 his acts in the premises. See: 21 R. C. L. (principal and agents { 5, G6 and 25). Luke v. Griggs, 4 Dak. 287, 30 N. W. 170, 31 Cyc. p. 1215; 31 Cyc. p. 1566, J E.

The retention of the money tendered by Martin constitutes an estoppel. Dowagiac Mfg. Co. v. Mellekson, 13 N. D. 257, 100 N. W. 717; Russel v. Waterloo Thresh. Mach. Co. 17 N. D. 248, 116 N. W. 611; Townsend v. Kennedy, 6 S. D. 47, 60 N. W. 164; Union Trust Co. v. Phillips 7 S. D. 225, 63 N. W. 903.

Sinness & Duffy, for respondent.

Where a vendor fails to convey the land sold, the vendee may recover the purchase money paid, with interest from the time of payment if he is out of possession or without interest if he has had possession. Kicks v. State Bank, 12 N: D. 576, 98 N. W.

This proposition is well sustained by the authorities. Fernander v. Dunn, 65 Am. Dec. 607, 19 Ga. 497.

And in case of a breach of warranty of title in a deed this is the measure of damages fixed by statute. § 7149 C. L. of 1913.

Wisconsin holds that where a purchaser goes into possession and the vendor fails to convey good title, the purchaser may rescind and recover damages, but that where he elects to hold possession under the contract, “he can do so only upon condition that he pays the purchasemoney and interest according to the contract.” McIndoe v. Morman, 26 Wis. 588 7. Am. Rep. 96; Dunn v. Mills, 70 Kan. 656, 2 An. Cas. 363, and note thereto in An. Cas; § 370 subject Vendor and Purchaser, 27 R. C. L. 616; Worley v. Nethercott, 91 Cal. 512, 25 A. S. R. 209; Larkin v. Montgomery Bank, 9 Port (Ala.) 434, 33 Am. Dec. 324; Giles v. Williams, 3 Ala. 316, 37 Am. Dec. 692.

, C. J. This is an appeal from a judgment of the district court entered in plaintiff’s favor against the defendants. The action is one to quiet title to a certain tract of land situated in Rolette county, and described as the S. W. % of section 10 in township 159 north, range 69. The complaint is largely in statutory form. Martin claims to be the owner in fee of the premises since October, 1917. The source of his claim is shown by {| 4 of the answer, which is as follows:

“Further answering plaintiff’s complaint, your defendants allege