¶1delivered the opinion of the court.
¶2The matter. 0f second plea, pleaded by the defendant, does not present a bar to the recovery of the plaintiff below. The contract to be void on the non-pajment of the money, was not the note which was the foundation of this action, but the contract for the sale of the lot.
¶3It does not lie with the payer of the note to say, that his non-payment of the money on the day has made the note void. The election, to say so, rested with Manning, not with the maker of the note. By this suit Manning has elected to have his money; and he thereby affirms his contract and sale of the lot. The money being paid, though after die day by the coercion of law, at the instance of Manning, he may be coerced to convey: a court of equity will compel him, should he refuse.
¶4Judgment affirmed.