¶1By agreeing that the plaintiff should convey directly to Imber, the defendant admitted that Imber ryas the owner of the equitable interest,' and exclusively entitled to call fon the legal title. The agreement, therefore, was necessarily a reci-?. sion of the original contract, because, as the defendant could not convey to both, he could not have conveyed to either, without a preach of the engagement to tlie other, if both engagements were in force., But further,; the' plaintiff could reco.ver, if. at all, oqly as a trustee for Imber, or those in his stead. Rut the plaintiff, by qdmftting Briber’s equitable ownership, admitted a right in him to, hypothecate it, b.y creating a lien on the title. Hqw, then, could’ the plaintiff recover as a trustee for Imber, whom the court would¡ recognize as the real party, clear <?f Imber’s agreement? Either, then, the original contract was dissolved, or it was not. If dissolved, 'the plaintiff cannot recover. If-it was not, he can recover for the. use of- Imber, only by reimbursing the defendant his advances,, for. Imber, on the credit of his agreement for a lien on the title.
¶2Judgment reversed, and. a venire.de novo, awarded.