¶1I concur with Mr. Justice Ingraham for affirmance. Fanning’s breach of the building contract is not pleaded as a counterclaim, but solely as a defense. It may have furnished sufficient ground for a *602rescission of that contract which would have invalidated the mortgage given under it. But to effectuate this it was necessary for the appellant to tender back his deed of the property. The only formal tender ever made was made long after the appellant learned of the' breach, and after he had ratified the contract by attempting to sell the premises. It was also coupled with unjustifiable conditions. The appellant cannot resist the mortgage while retaining the land. He still has his action for damages for the breach of contract.
¶2The contention that the mortgage was delivered in escroto to Fanning’s attorney pending a settlement by the latter of the liens on the property, and that until this was done it acquired no validity, is met by the appellant’s express admission.that both deed and mortgage were recorded at his request.
¶3Judgment affirmed, with costs.