¶1The referee rested his decision upon the ground that the plaintiff should have surrendered the possession of the premises which he had taken and held under the verbal contract, before bringing the action. The first contract for the larger tract was evidently rescinded and abandoned by the consent of the parties to it. This was not controverted upon the trial, and is clearly evidenced by the negotiation and contract to purchase a part of the same premises of the defendant in 1859. The plaintiff continuing in possession of the four acres confessedly included in the second purchase, whether that was of the four acres only, or of the whole seven acres owned by the defendant, after the *78second contract was made and the first given up, such possession must be referred to the contract in force, and not to the one that was defunct by the act of the parties. Before, then, the-plaintiff could rescind the contract and claim to recover his money paid as a part of the purchase price of the premises, he was clearly bound to restore to the defendant the possession of the-premises. He could not occupy under the contract, and thus enjoy the benefit of it, and at the same time treat it as rescinded, and reclaim the purchase money. The money can only be recovered back when the contract has been rescinded in toto; and so long as the vendee is reaping the fruits of it, it is not wholly rescinded. Had the action been for a breach of the contract, the question would have been different. But without a surrender of the possession, the action will not lie. (Gale v. Nixon, 6 Cowen, 445. Voorhees v. Earl, 2 Hill, 288. Hogan v. Weyer, 5 id. 389.)
¶2The judgment must be affirmed.
¶3Bacon, Allen, Mullin and Morgan, Justices.]