majority">COLLIER, C. J.

In James v. Scott, 9 Ala. Rep. 579, we decided, that the first branch of the agreement by which the land was leased to the plaintiff, and the possession of the slaves yielded to the lessor as an equivalent for the rent, was a valid contract, and the plaintiff could not, while he occupied the land, recover the slaves of Stiggins, or one claiming under him during his life. We are now called on to determine whether the latter part of the agreement -is obligatory on the plaintiff, so that he cannot, now that Stiggins is dead, maintain an action for the slaves.

The agreement is too explicit in its terms, to admit of serious controversy as to the meaning of the parties. It was obviously the intention of the plaintiff to enjoy the land during the life of the reservee, under the treaty recited, and after his death to acquire a fee simple title, if his heirs were willing to convey their interest upon attaining the age when, by the treaty and the law of Congress, they were competent to dispose of it. A conditional sale of the slaves cannot be predicated of any thing contained in the writing. They were merely placed in the possession of the reservee as a substitute for rent, with a stipulation, that if the plaintiff obtained a title under a purchase to be made of the reservee’s heirs, the latter should become the proprietors of them. Whether the heirs would sell their respective portions of the land, was a matter depending upon their volition, to be exercised when the time appointed for their decision arrived.

It must be observed that the contract we are considering is altogether unilateral — it stipulates what the plaintiff shall do, but does not (in fact could not) undertake for the performance of any duty by the heirs of Stiggins — it provides what they shall receive as an equivalent for a contemplated act, but imposes no obligation to do the act. In this view, it is perfectly clear that the second branch of the agreement wants an essential element of a contract — reciprocity. Allen v. Roberts, 2 Bibb’s Rep. 98; Cooke v. Oxley, 3 T. Rep. 653; *836Humphries v. Carvalho, 16 East’s Rep. 45; Lee v. Whitcomb, 5 Bingh. Rep. 34; Tucker v. Wood, 12 Johns. Rep. 190; Story on Con. 52, et seq. These citations abundantly establish that it is indispensable to the legal validity of a contract; that it should be mutually obligatory upon the parties, or it will be binding on neither of them.

The plaintiff, by bringing his action for the recovery of the slaves, has signified^his purpose not to be bound by his undertaking to exchange them with the heirs of Stiggins for the land, conceding the agreement contemplates that after the death of the latter the slaves shall remain in the possession of the heirs until they are of sufficient age to assent or dissent to the sale of their respective interests. We have al'ready intimated that the only term of the agreement that is obligatory, became functus officio upon the death of Stiggins, and whether any other duties and responsibilities as between the plaintiff and his heirs shall grow out of it, must depend upon a contract to be made in futuro. The writing, as it respects even the last branch of it, has no validity — it evidences a contract in embryo, ineffectual for all legal purposes, until life is imparted to it.

Under such circumstances, even if it can be presumed that the plaintiff still retains the possession of the land, was it indispensable to his right to recover that he should have offered to yield it to the heirs of his lessor ? The contract being at an end by the operation of the law upon its terms, the effort to recover the slaves cannot with propriety be called a rescission of that part which never had validity. In no point of view can the agreement of the plaintiff to deliver up the slaves to Stiggins’s heirs, if they would when competent, perfect his title to the land, be considered as more potent in law than a mere proposition to purchase from them when they became old enough to sell. Such a proposition might be withdrawn at the mere pleasure of the party making it, any time previous to its acceptance, so as to make a binding contract. Falls & Caldwell v. Gaither, 9 Port. Rep. 605. The. defendants, then, as the legal distributees of George Stiggins, have no right to retain the slaves in question; .nor can they insist upon being restored to the posses*837•sion of land which the former leased to the plaintiff, as a condition precedent to his right to maintain the present action. The doctrine which requires a party to be placed in statu quo in order to rescind, does not apply where there is neither in law or fact, any thing having the form or the sub- • stance of a contract. It is not allowable for the defendants to set off the retention of the possession of the land against the enforcement of a clear legal right. If it be true that the plaintiff has continued to occupy the land since the death of George Stiggins, perhaps he would not be allowed to recover hire for the slaves, but the hires and rents would be set off .against each other.

The judgment of the circuit court is consequently reversed, and the cause remanded.

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