The defendant agreed with plaintiff to sell to him a tract of land at a stipulated price per acre, possession to be given on full payment. Plaintiff paid five thousand two hundred dollars, part of the purchase price. Defendant having failed to convey, this acti/ *430was brought to recover the money paid. At the time of making the contract, defendant was not in condition to give title, the title being in other parties, nor has she since acquired the title. The defendant can give neither title nor possession. Under such circumstances, the plaintiff is entitled to recover the money paid.

Judgment and order affirmed.

Ross, J.; and McKinstry, J., concurred