delivered the opinion of the court, February 15th, 1886.

On the 8th day of September, 1881, the defendant below, J. Barlow Moorhead, and the plaintiff, James K. Scofield, made and executed articles of agreement, the covenants and conditions of which are as follows: Moorhead agreed to sell to Scofield a certain property situated in the County of Oglethorpe, State of Georgia, known as the Guarantee Gold Mining Company’s property. In consideration thereof the said vendee covenanted to pay to the vendor the sum of ten thousand dollars, in manner following, that is to say: Five hundred dollars cash in hand, fifteen hundred dollars on the 31st of December next following, and at this date the balance also was to be settled by the plaintiff’s four notes with approved security, at three, six, nine and twelve months, with interest from date. On performance, as thus stated, by Scofield, Moorhead was to convey to him the property as above described. We may here, by way of explanation, say that this property, as we understand-the matter, consisted of both land and personalty ; the latter in the shape of engines, boilers, pumps, tools, and the like, was used on the land for the purposes of mining. The agreement then concluded as follows : “ It is mutually agreed that if the said party of the second part should fail to make said second payment of fifteen hundred dollars cash, and notes with approved security for eight thousand dollars, as above provided, on or before the 31st day of December, 1881, he shall forfeit to the party of the first part the first payment of five hundred dollars above specified, together with all improvements that he may have made and all machinery which he may have placed upon said property. It is further agreed that upon the execution of these- articles of agreement, and the payment of the said sum of five hundred dollars, the said party of the second part shall be entitled to take possession of the said mining property in the State of Georgia, and to use the same and the machinery thereon, and shall own the issue and product of such property until the 31st day of December, 1881, his title to such property to become absolute on making the second payment as above provided. Should the said party of the second part fail to make said second payment as above provided, the forfeiture of the five hundred dollars first payment, and the machineiy and improvements, shall release him from all liability to claim and demand of the said party of the first part by reason of failure to make second payment.”

Now, it will be observed that there is here a condition without the performance of which no property in and to the sub-' ject matter of the sale vested in the plaintiff. On the payment of the hand money he was to have possession, .but he had title *588to nothing until the making of the second payment, consisting, as the parties have put it, of the fifteen hundred dollars cash and the four secured notes. After the date of the articles and payment of the hand money, the plaintiff took possession of the premises, and added to the machinery and apparatus which he found thereon, property to the amount of about twenty-five hundred dollars. He also put George W. Shalcross in possession thereof as his superintendent and agent, who seems to have retained that possession for Scofield until the 3d of April, 1883, the date of the bill of sale' which gives rise to the controversy in hand. When the time came for the execution of the notes, after an extension, he, Scofield, paid the fifteen hundred dollars, the cash part of the second payment, and gave his paper to Moorhead, but refused the required security. He says: “ I called on Mr. Moorhead and told him I was prepared to offer him the four notes. He took them. I said the property would be security enough. I did not like to ask any one for security. I said the property was security enough.” From this we conclude that Moorhead took the notes with the understanding that the title was to be continued in him until they were paid. In other words, the property was to remain, so far as title was concerned, just as it was prior to the settlement of the second payment. Two of these notes, one of $2,060 and the other of $2,070.60, remain unpaid, so that the plaintiff, by his.own showing, has never acquired title to the property in controversy. It is urged, however, on part of the plaintiff that the defendant by his assignment of the 3d April, 1883, to Shallcross put it out of his power to comply with the contract, and also put it in the power of Shallcross to assume the possession of the property to the exclusion of him, the plaintiff. But the proposition here put rests upon a hypothesis destructive of the plaintiff’s case; that is, that the defendant had power to sell, for if he had such power an improper exercise of it could, at most, but amount to a breach of his covenant, and to correct such breach certainly the action of trover would not lie. Morever, without reference to the question of a forfeiture on part of the plaintiff by a neglect to pay his notes when due, Moorhead, having in himself the legal title to the property, had unquestionably the right to sell it, and Shallcross having possession of the premises in right of Scofield, and as his agent, could not set up the want of notice as to his principal’s title, hence, however general the words of the assignment to him, he could take no more than Moorehead had the power to sell — that is, the title without the right of possession. It would seem, however, that Shallcross’s title is not susceptible of impeachment on part of Scofield, for the reason that it was at his own instance, and under an *589arrangement of himself and others looking to the stocking of the property, that Shallcross bought from the defendant. In answer to the question, “ Had you not before that time assigned all the personal estate to George W. Shallcross?” the plaintiff answered “No ; not for all of it, only the part I sent down. The bill of March 8th, 1883, was made to Mr. Shallcross, because we were advised we could not issue stock until the property 'was vested in the company. I was to transfer all my interest to Shallcross for the companj', and he was to get Mr. Moorhead to assign his interest to the company.” Further on he continues: “ I assigned my interest to Mr. Shallcross in all the property I put there. I did not assign the rest because I had not the title to the property. Mr. Moorhead never refused to give me title upon payment of these notes. I never made any demand of Mr. Moorhead except this suit.” This, then, is the plaintiff’s case, made out from his own evidence ; a covenant with which he never complied; an admission that he has no title to the property for which he seeks to recover ; that his adversary has not as yet been in default, and that with his own knowledge and assent, and. to accomplish his own purpose, Shallcross, his agent, made the purchase now complained of. What, under these circumstances, under the evidence thus produced, can we possibly do but conclude that, so far as the suit in hand is concerned, the plaintiff has no cause of action.

The judgment is reversed, and a new venire is ordered.