Vendor and Vendee—Failure to Pay Installments When Due— Belated Tender—Waiver of Delay by Vendor.—The rule that a vendee under a contract for the sale of land who has, without excuse, failed to make payments of installments of the purchase price as they fell due, cannot, by a belated tender, put the vendor in default and thus establish a right to recover the sums paid under the contract, does not apply to a case where the vendor has waived the delay in making payments.

Id.—Time of Essence—Failure to Exact Forfeiture—Maturity of Entire Contract Price—Concurrent Conditions—Offer of Performance by Vendor.—Where the vendor under a contract making time of the essence, and giving him the option, upon default of the vendee, to declare the whole purchase price due or to cancel the contract, re-enter and take possession of the premises and retain all moneys paid by the vendee as rent for use and occupation, permits the entire contract price to become due, without exercising his option to declare a forfeiture, the payment of the price then becomes a dependent and concurrent condition, nonpayment alone does not put the vendee in default, and the vendor must tender a deed as a condition to demanding payment of the price, and he cannot, without such tender, declare a forfeiture, or maintain a suit either for the whole price, or for an intermediate installment.

Id.—Laches of Vendee'—Delay of Vendee does not Affect Right to Rescind—Inability to Give Good Title.—Where the provision of such contract making time of the essence has once been waived, mere delay by the vendee, short of the statutory period of limitation, in making a tender, will not constitute laches, in the absence of a showing that the delay has prejudiced the vendor. Such delay would not affect the right of the vendee to rescind the contract for inability on the part of the vendor to make a good title.

Id.—Acceptance of Part of Final Payment After Maturity.—The waiver by the vendor of the right to insist upon prompt payment is established by his acceptance of a part of the final installment of the purchase price long after it became due.

Id.—Agreement to Pay Balance at Time of Waiver.—After such a waiver has been made, the fact that the parties agreed, at the time the belated payment was accepted, that the vendee would pay the balance upon the delivery of the deed, is immaterial to the right of the vendee to subsequently rescind for inability of the vendor to give a good title.

Id.—Defect of Parties—Nonjoinder of Husband of Married Woman as Plaintiff—Waiver of Objection.—The objection that the plaintiff was a married woman, and that her husband should have been joined with her, is in effect a plea of defect of parties plaintiff, which, if not taken by demurrer, where appearing on the face of the complaint, or by answer, is deemed waived. A mere denial in the answer of an allegation in the complaint that the plaintiff is an unmarried woman is insufficient to set up such plea.

fo.—Interest on Installments not Allowed.—An action by the vendee to recover installments of the purchase price paid, on account of the inability of the vendor to give a good title, is in effect an action for money had and received, in which the right is based upon a want or failure of consideration. Until rescission, or a demand for repayment, nothing was due, and interest on such installments from the time of their payment is not recoverable. No different conclusion would follow if the action were construed as one based on fraud.

Id.—Absence of Showing of Possession by Vendee—Failure to Offer to Restore Possession.—In such action, where neither the complaint nor answer averred that the vendee ever received or took possession of the land contracted to be sold, the vendee’s notice of rescission was not rendered ineffectual for want of an offer to restore the possession. An averment in the complaint that the parties agreed for possession by the vendee, does not show that possession was in fact delivered.

Id.—Possession by Vendee not Presumed.—It will not be presumed in such action, for the purpose of overthrowing a judgment for the vendee, that the possession was in the vendee.

Id.-—Pleading—Recitals in Contract Embodied in Complaint.—Recitals in a contract incorporated in a complaint will not supply the want of essential averments in the pleading. Consequently, the mere annexing to the complaint of a contract providing that the purchaser shall have possession cannot be treated as equivalent to an averment that possession was in fact transferred.

Id.—Rescission of Contract may be Had in Action.—Even if the contract had not been formally rescinded by the vendee before the commencement of the action, that relief could be had under a prayer therefor in the complaint.