Culver v. Burgher

By the Court, Marvin, J. At the mortgage sale the defendant bid $600 for the premises: he paid in cash, at the time, $100, and gave his due-bill, payable to the owner of the mortgage, the plaintiff, for $500, the balance of his bid. And the attorneys of the plaintiff executed to him a writing, reciting the facts, and declaring that “ he [the plaintiff] is to have a title on the payment of the said note.” We have here the agreement upon which the note was given. No question is made as to the authority of the plaintiff’s attorneys to enter into the contract. Nor can any be made in this action, as the plaintiff accepted the note, and has brought an action upon it. He has thus adopted the acts of his attorneys. The plaintiff could not enforce the payment of the note until he had performed or tendered performance of the agreement, on his part. The defendant had a right, at the time of payment) to have a [326] title to the land, "under the foreclosure. The promises or undertakings were mutual and dependent, and the title to the land, and the payment of the money were to be simultaneous acts. The plaintiff should have caused the proper" papers to be prepared for perfecting the title in him, and should have tendered them to the defendant before bringing his action upon the note. The rule is well settled that the vendor of land cannot maintain an action for the price of the land, when the covenants or promises are mutual and dependent, until he has tendered performance on his part. If the consideration is to be paid by the vendee and the conveyance is to be made by the vendor at the same time, the vendor must prepare and tender the conveyance before he brings his action. When the deed is to be given on or upon the payment of the consideration, the acts of paying and conveying are concurrent acts. (Hardin v. Kretsinger, 17 John. 293. Robb v. Montgomery, 20 id. 15. Judson v. Wass, 11 id. 525. Johnson v. Wygant, 11 Wend. 48. Williams v. Healey, 3 Denio, 363.) [Erie General Term, January 14, 1856. We can take no notice of the exception taken by the plaintiff. The evidence objected to was admitted, and is a part of the case. The judgment must be reversed, and a new trial had; costs to abide the event. . Bowen, Mullett and Marvin, Justices.]