The plaintiff, upon the facts stated, is not entitled to maintain this action, not because the vendee of an estate sold by an auctioneer may not in some cases resort to the vendor for money paid by him as a condition of the sale, but for other reasons which will be stated.

The two hundred dollars paid to the auctioneer was, as stated in the case of the plaintiff, paid as “ forfeit money ” in case the vendee failed to perform his contract in reference to the purchase. There was no default shown to exist on the part of the owner of the land, either in reference to his title, or his readiness to execute a proper deed. The plaintiff acted under the false assumption that there was an existing incumbrance on the estate. The plaintiff never tendered the purchase money, and the judge who heard the case found as a fact that the bargain was given up by both parties. When the contract was thus *342mutually released, and the plaintiff discharged from all claim foi forfeiture of the two hundred dollars, he knew that the money paid by him was in the hands of the auctioneer. He forbade the auctioneer to pay it over to the defendant, and demanded payment thereof by the auctioneer to himself, but has never demanded the same of the defendant. The plaintiff thus recognized the auctioneer as holding the money for himself exclusively, and by the mutual abandonment of the contract by the parties without any further stipulation as to the repayment of the two hundred dollars, he was entitled to recover the same of the auctioneer, and, under the circumstances of the case, of him alone.

The ruling of the judge, upon the facts found by him to be proved, that the defendant was liable in the present action, was erroneous.

Exceptions sustained.