—This is an action to recover money paid as a part of the purchase-money for real estate for which the plaintiff claims he got no title.

There was a nonsuit granted by the court below on the ground that the plaintiff had received a deed for the property, and the title having vested in him, he must tender a reconveyance of the property before he could recover back the money paid by him. But the evidence *404shows beyond any question that the property deeded to the plaintiff was not the property purchased by him, but of lots in a different block, and that immediately upon discovering the fact, he declined to go further with the trade and did not take the deed, although it had actually been placed in his hands. This was not a delivery of a deed for the property the plaintiff had purchased, and vested no title in him. It was not necessary, therefore, that he should have tendered a conveyance of the property before bringing this action.

Judgment reversed.

McFarland, J., Sharpstein, J., Thornton, J., and Paterson, J., concurred.