Mr. Justice Bean
delivered the opinion of the court.
1. It is contended by the plaintiff’s counsel that the time for Ward to furnish a good title and convey the land to the Jameses or their assigns has not arrived and that the vendor is not in default in the premises; and therefore the contract of sale cannot be rescinded. The stipulation of the agreement of sale provides for a deed of conveyance to be made by Ward after the payment of the purchase price is completed. It appears that the consideration for the deed has not been paid nor.tendered to Ward. In order to put Ward, the vendor, in default such payment, or a valid tender thereof, must be made to him according to the agreement of sale.
2. The assignment, or an arrangement for an assignment of the contract by the Jameses to the Rickmans did not change the status of the vendor. The Rick-mans would stand in no better position than the Jameses did prior to such deal. Neither of the defendants is entitled to make the defense that there are defects in Ward’s title and the Jameses are not entitled to rescind the contract of sale.
3,4. It is sufficient if the vendor have good title when the vendee by payment or tender of the purchase money places himself in possession to demand title, where the vendee is in a position and there is no. fraud: Waterman on Specific Performance, § 420. In actions by the vendor for the purchase money before the time when he is required by the contract to pass the title the purchaser cannot defend on the ground that the title is defective, since the vendor may acquire title be[380]*380fore the specified time. It is sufficient if he has a good title at the time when the conveyance is to be made, and the objection that he had none when the contract was made will be unavailing’. A purchaser in possession is estopped from denying the title of the vendor. The vendor and vendee stand in the relation of landlord and tenant: Frink v. Thomas, 20 Or. 265, 273 (25 Pac. 717, 12 L. R. A. 239); Maupin on Marketable Title to Real Estate, § 308, p. 741; 39 Cyc., pp. 1574, 1614; Gervaise v. Brookins, 156 Cal. 103 (103 Pac. 329). There can be no rescission and recovery of purchase price by the purchaser where the vendor is able and willing to perform within the time limited by the contract of sale: 39 Cyc. 2006. If the.vendor fail to furnish good title at the time fixed for performance the purchaser may maintain an action to recover the price paid: 39 Cyc. 2009, note; Eggers v. Busch, 54 Ill. App. 279. Prior to the expiration of the time fixed for tendering the conveyance, James, the purchaser, cannot recover the partial payments made where no deed was required to be given by Ward until the balancé of the price is paid, as agreed, the purchaser not having paid nor tendered the amount: Sievers v. Brown, 36 Or. 221 (56 Pac. 170), and cases there cited; McAlpine v. Reicheneker, 56 Kan. 100 (42 Pac. 339); Woodward v. Van Hoy, 45 Mo. 300. Where the payment of the purchase money or a deferred portion thereof and the making or tender of the deed are to occur simultaneously they are regarded as mutual and concurrent acts which disable either party from putting an end to the contract, without performance or a valid offer to perform on his part: Frink v. Thomas, 20 Or. 265, 273 (25 Pac. 717, 12 L. R. A. 239).
After the negotiations between the Jameses and the Rickmans an abstract of title was prepared and [381]*381examined by an attorney, resulting in a letter from James to Ward requesting him to straighten out the title and put the same in a marketable condition. After the commencement of this suit it appears that plaintiff took steps to do this. James claims that $500 for the possessory right to a tract of land should be credited as a payment to Ward.
The rights and equities of the parties in the premises depend largely on what has taken place since the beginning of this litigation. From the present state of the record it would be impossible for this court to adjust the equities of the case with safety. From the findings of the trial court it does not seem that Ward does not own the land in question, but that the record does not show a perfect title in him. Plaintiff seeks a harsh and unfavored remedy of a strict foreclosure: Wiltsie on Mortgage Foreclosures, vol. 2 (3 ed.), § 965; 27 Cyc. 1648 (b). This should not be granted without the court being informed as to the present conditions and as to the prospect of a compliance with the terms of the contract on the part of the Jameses. Quite a large payment in land and cash has been made. It appears that the personal property transferred with the place has been partly dissipated which has a bearing on the case.
5. It is asserted by counsel for defendants in their brief that before a vendor can foreclose a sale contract, he must be able to tender and tender a title in accordance with his contract. This rule applies where the payment of the purchase money and the making of the conveyance are by the contract to be concurrent acts. It cannot be invoked where by the terms of the contract'payments of installments of interest are to be made which are conditions precedent to the execution of a deed. In other words, making [382]*382a deed “in accordance with his contract” in this case means furnishing such conveyance when the stipulated payments are made. The rule as claimed would permit the purchaser under certain conditions to remain in possession of the premises for ten years without paying interest. The parties have made their agreement and should abide by the same.
The decree of the lower court should be reversed and the cause remanded with permission for the respective parties to make application to that court to present the issues of the case as they now exist, if they so desire, and for such further proceedings not inconsistent herewith as may seem proper. Neither party should recover costs in this court; and it is so ordered.
Reversed and Remanded With Directions.
Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice McCamant concur. Free access — add to your briefcase to read the full text and ask questions with AI