¶1It is, perhaps, necessary that ' we should advert to the principle on which the decree in this case is based, previous to considering the modification which the Chancellor gave to it, and in which we do not concur.
¶2Ordinarily, when a bill is filed ifor a specific performance, and it is dismissed, nothing more is settled by the decree, than that the case is one in which equity will not interpose its extraordinary powers. But there are cases in which a decree may deny a specific performance, and also .give relief, or great injustice would be the consequence. A case of this sort, of very ready comprehension, is when time is inserted as a condition, and a payment is made, which is to be forfeited if the purchaser does not make other payments within limited periods. In such a case the vendor at law is discharged from the contract, and possibly he may also be discharged in equity, but he clearly cannot in equity retain the money paid to him, any further than is necessary to save him harmless from all losses actually sustained. [Vernon v. Stephens, 2 P. Wms. 66 ; Mess v. Matthews, 3 Ves. Jr. 279.]
¶3*715It is true, that here the complainant might have brought his action to recover the money paid, and thus have disaffirmed the verbal contract, but he was not bound to do so ; instead of that, he files his bill, and thus offers to the defendant either to comply with the verbal contract, or to rescind it by insisting on the statute as a bar. The defendant avails of the bar, and consequently there is no pretence for saying, that he can have any rights under the contract.
¶4It is sufficient that the defendant elects to consider the contract as void; after this the money is money received to the complainant’s use, and there is no reason why he should be put to two suits ; one in equity to compel the defendant to perform the contract, if he will, and the other at law, to get his money back, -after the defendant has, in effect, admitted that he has no claim to it. Let -it be conceded that the rents have been lost in consequence of this contract, no injustice is done to the defendant, if the complainant is ready and willing to carry it out. But when the defendant declines to do this, there is no color for him to assert that he is injured by the contract not having been complied with.
¶5When he refuses to execute it, the presumption is equally Reasonable that the appreciation in value of the property contracted for, is more than equivalent to the loss sustained by its remaining unoccupied.
¶6The decree must be reversed, and here rendered in favor of the complainant for five hundred dollars, with interest from the thirty-first of August, 1836, the time when the money was paid.