The President, Directors and Company of the Bank of Columbia vs. Peter Hagner

The President, Directors and Company of the Bank of Columbia vs. Peter Hagner. When no specific time for the payment of money is fixed in a contract by which the same is to be paid by one party to the other, in judgment of law, the same is payable on demand. {463} fn contracts for the sale of land, by which one agrees to purchase, and the other to convey, the undertakings of the respective parties are always dependent, unless a contrary intimation clearly appears. {464} Although many nice distinctions are to be found in the books upon the question, whether the covenants or promises of the respective parties to the contract, are to be considered independent or dependent; yet it is evident the intimation of'Courts have strongly favoured the latter construction, as being obviously the most just. {465} In such cases, if either vendor or vendee, wish to compel the other to fulfil his contract; he must make his part of the agreement precedent, and cannot proceed.-against the other, without actual performance of the agreement on his part, or a tender and refusal. {465} An averment of performance is always made in the declaration upon contracts containing dependent undertakings, and that averment must be supported by proof. {465} The time fixed for the performance of a contract, is, at law, deemed the essence of the contract, and if the seller is not ready and able to perforin his part of the agreement on that day, the purchaser may elect to consid- • er the contract at an end. But equity, which from its peculiar jurisdic- ' tion is enabled to examine into the cause of delay, in completing a purchase, and to ascertain how far the day named was deemed material by the parties, will, in certain caSes, carry the agreement into execution, id though the time appointed has elapsed. {465} It may be laid down as a rule, that, at law, to entitle the vendor to recover the purchase money, he must aver in his declaration performance of the contract on his part, or an offer to perforin, at the day specified for the .performance. And this averment must be sustained by proof; unless 'th« tender has been waived by the purchaser. {467} If before the period fixed for the delivery of a deed for lands, the vendee has declared he would not receive it, and that he intended to abandon the contract, it may render a tender of the deed before the institution of a suit unnecessary. But this rule can never apply, except in cases where the act which is construed into a waiver, occurs previous to the time for performance. {467} The taking possession of property by the vendee, before conveyance, is a circumstance from which is to be inferred that he considered the contract closed, but would not deprive him of the right to relinquish the property, if the vendor could not make a title or neglected to do so. After a re-linquisliment for such causes, the vendee could sustain an action to recover back the purchase money had it been paid. {468} Where the legal title cannot be conveyed to the vendee by the vendor, and the vendee must resort to a Court of Equity to establish his title, notwithstanding a conveyance of all the right of the vendor to him, the Cour' will not compel him to pay the purchase money. It would be compelling him to take a law suit, instead of the land. {468} THE plaintiffs instituted their suit in the' Circuit Court for the county of Washington, against the defendant, on a special •agreement to purchase two lots of ground in the city of Washington. The plaintiffs to support the issues joined on their part, offered in evidence certain deeds, papers and letters; the hand writing of the parties and the delivery of the letters, at their several dates, being admitted. John Templeman, being indebted to the plaintiffs in a.large amount, conveyed by deed, dated 31st March 1809, to Walter Smith, in trust to secure the debt, certain lots in the city of > Washington, the two lots alleged to have been sold to the' defendant included; the said trustee being authorized to sell, at public sale, the property conveyed. On the 31st of March 1821,. the bank, under seal, authorized Walter Smith to release the two lots to Jo’ ' Templeman, and under this authority the trustee conveyed tne property to Tem-pleman, who by deed dated 29th April 1821, conveyed the' same to Peter Hagner, the defendant. ■ The conveyance, by Walter Smith to Templeman, and from •Templeman to Mr. Hagner, were made by the direction of the bank, for the purpose of vesting a title to the two lots in .Mr. Hagner, ih execution of their part of the agreement upqn which the suit' was founded, and before the suit was commenced. The'material evidence offered by the plaintiffs to establish their claim upon Mr. Hagner, and to prove a. contract made by ■ him, for the purchase of the two lots was contained in a correspondence, &c. between General John Mason, the President . of the Bank, and-Mr. Hagner; commencing on the 14th May .1817," and ending on the 19th of May 1821, numbered from 1, to 11* No. 1, dated 14th May 1817, letter, Peter. Hagner to General Mason, expressed a wish to purchase the'lots, if the bank was' disposed to sell them, at a reasonable price — No. 2, from Generar Mason to Mr. Hagner, dated October 16th 1817, stated, that .the Board of 'Directors had fixed the prite of the lots at twenty-five cents per square foot — No. 3, from Mr. Hagner to' .General Mason, dated October 17th 1817, communicated an offer of ten cents per square foot,'which, by letter dated 17th December 1817, No, 4, was extended to fifteen cents per square foot — No. 5, was a memorandum sent by Mr. Hagner to General Mason,.tó be signed by him, and which was so done, on the 27th of April 1818 : the memorandum bearing date April 25th 1818, and stating that the lots were on that day sold to Mr. Hagner, at twenty-five cents per square foot; “ payable at &uch periods as the bank may approve.” ■ • On the 27th April 1818, No. 6, Mr. Hagner wrote to General Mason, desiring to have the payments for the lots purchased by him, at twenty-five cents per square foot, to meet his income; and proposed to have the same divided into six quarterly payments, the first to be made on the first day of the fol-' lowing October; offering his notes, '.and asking for a deed; or if this should not be agreed to, stating that he would bind himself to pay. the money as proposed, “ and receive a bond of conveyance, conditioned to give a full title, when the money shbuldi be paid.” This letter requested a return óf the memorandum, No. 5. , Upon this letter; there was written, in pencil, in the handwriting of General Mason, according to the usual practice at the sittings of the Board of Directors,, “accepted — interest on each note, as it becomes due” — No. 7, April 27th 1818, from General Mason to Mr. Hagner, enclosed the memorandum, No. 5, and mentions that his proposition would be submitted to the Board. On the 7th October, 1818, Mr. Hagner wrote to Gen. Mason, (No. 8,) stating that he was prepared to pay the'instalment falling due on the 1st October, and requesting a bond of conveyance. December 26, 1820, (No. 9,) Mr. Hagner, by letter, states that a long time had passed since his pur chase, without the title to the lots having been completed; and the bank continues without authority to convey:' 'The bank at the time of the purchase had no. authority to sell at private sale, and must haye made title by a circuitous and doubtful process of a public auction, at which some one might have interposed and obtained the lot. That the bank might have held him-bound to take the property, although not reciprocally bound; and that'the. answer of the President of .the Bank, was hot certain and absolute, but was referred to and made'dependent on the determination of the Board of Directors'. Under these, and other circumstahbes stated by him, he' communicates his determination to relinquish the purchase. On the 8th May 1821, Mr. Hagner notifies General Mason,. (No. 10,) that he'considers his agreement to purchase the lots void, and that-he has no claim Or title to. them.' -'.In reply to this letter, upon the 19th May 1821, (No. 11.) Gen. Mason-says:— “ You will no doubt, Sir, recollect a conversation I had with you soon after-the reception of your letter of the 26th December-last,when I informed you that that letter had beén' submitted to the Board of Directors, and that it had been determined that the purchase by you of the lot's in question being considered in all respects a' firm and bona fide purchase, it would not be relinquished, and that measures would be taken to make you a title valid in-law.. I am now instructed to inform you that those measures have been taken — that deeds fó that effect have been made by the. proper parties,nvhich are expected to be soon re-ccived here, when they will be tendered you, and *a compliance with your part'of the contract expected.” . Evidence was also given, on the part of the plaintiffs, to prove the entire insolvency of John Templeman, and the non-payment by him of any part of Kis debt to the'plaintiffs. That on the 28th September 1821, a tender of the deeds already mentioned was made by an officer of the bank to the defendant, who refused to accept them; The deed of Templeman to Hag-tier, dated 3d of April-1821, was recorded by the consent without prejudice. A witness also proved, that iff-the month of June 1818, he was employed by defendant to enclose the two lots in question, and did enclose them with a board fence: that before enclosing the said lots, an old house was pulled down by order of the defendant, and some part of the materials used in making the Said enclosure; that some time afterwards, the witness was employed by defendant to pull down the fence, which, was done, and the lots left open; that the said house was a.small frame house, very old, and in bad rdpair; that it had-been inhabited some time before, but was not in tenantable order and condition; that if the house had been put in good repair, which would have cost half as much as building a'new house of the same size and kind, it would' have rented for. about three dollars per month. The clerk of the Circuit Court of the District of Columbia certified that there was no judgment in force on the 30th-day of March 1821 against John Templeman, and proof was '',’<o made that the taxes on the two lots of ground from 1809 to 1821 inclusive, -had been assessed to, and paid by the Bank of Columbia. On the 19th.-of May 1821, the situation of the lots was examined by order of the President of the bank, and it was found “that the fence had ’ been ’ removed apparently that spring, and the lots appeared to have been cultivated the fall before.” Upon this evidence the defendant, by his counsel, prayed the Court to instruct the-jury, that upon the evidence, so given on the part of the plaintiffs, though found by the jury to be true as above stated, the plaintiffs are not entitled to j’ecover in thi-s-action the purchase money for the lots in the' declaration mentioned; which instruction the Court gave as prayed. The plaintiffs prayed the Court to instruct the jury, that upon the evidence the plaintiffs were entitled .to recover such damages, as the jury should think the plaintiffs had sustained by the defendant refusing to comply with the contract stated in the declaration, if they should believe from the said evidence that the defendant consented to the delay on the part-of the plaintiffs to make a deed, or give a bond of conveyance for the lots mentioned in the declaration; which instruction the Court refused to give. A bill of exception was then tendered, by the counsel of the plaintiffs, to the instructions given by the Court on the prayers of the counsel for the defendant, and also to their refusal by the Court to give the instructions to the jury prayed for by the counsel for the plaintiffs. ' While the bill of exceptions was preparing, the following additional evidence was discovered by the plaintiffs, and was offered and read to the jury:— .A deed, .commissioners tó J. Templeman 19th September 1801. Liber G. fol. 490. A deed, Templeman & Stoddart to Bank of Columbia, 19th January 1802. H. 386. A deed, Stoddart to Templeman, 25th September 1804. M. No. 12, 151. A deed, Templeman to Bank of Columbia, 7th March 1807", .No. Í8, 346. The deed of 7th March, 1807, conveyed inter alia to the plaintiffs the two lots alleged to have been sold by Mr. Hagner, and. authorized the bank to sell the property vested in them by private' or public sale. This evidence being exhibited, the Court adhered to the instructions and opinions given to the jury, and an additional exception was taken thereto by the counsel for the plaintiffs, and á writ of error was prosecuted to this Court. For-the plaintiffs in error it was contended, that upon the evidence, the plaintiffs were entitled to recover, and that the Circuit Court ought to have so instructed the jury. Mr. Key for the plaintiffs. 1. A contract for- the purchase and salé of the two lots of ground was made between Mr. Hagner and the Bank of Columbia, the President of the bank having full authority from the Board of Directors to conclude the same. That the defendant had no evidence of the authority of the. President to make the contract was his own neglect, and he dealt.with him as the agent of the bank, and under; the contract took possession • of the property. By the contract the defendant was to pay for the lots, ac-. . cording to his proposition in -the letter of the 27 th of April 1817, and the acceptance “noted in pencil” is. the agreement in writing by the bank to the terms , proposed, of which, sufficient evidence exists, in addition to the circumstances of the defendant's entry on the lots, showing that he knew of the agreer ment of the bank, 2. The contract subsisted down to the period of the de-. ■fe'ndant’s refusal to fulfil it. It subsisted on the 7th October 1818, as shown by his letter referring to his propositions' of payment upon the 27th April 1817; by his remaining in possession, and this continued until January 1820, when all the payments became due, no application having been made to complete the title, although it may be inferred that, he knew some measures would be required for the purpose.. The acquiescence of the defendant in the delay, bound him during its existence, 3. When on the 26th December 1820, he communicated his determination to withdraw from the contract, he had no such privilege. He was bound to wait, if the title was not incurably bad, a. reasonable time until it should be completed. Sugden, 252-3-4-5. If' aware of the difficulties in the title arising from the salé made under the deed of 'trust by Waiter Smith, by which a public and not a prívate sale of the lots was to be made, he should have tendered performance on his part- and demanded performance of the vendors. Instead of this, if by that letter he intended to renounce at once,- this could not be done, legally, unless in the case of an ■ incurably bad title,'The formal relinquishment is made on the 8th of May 1821, and this being the first complaint of non-performance by the bank, it was promptly attended to. Cited Sugden on Vendors, 157. 249-50-51-52 — 34, 35.' The refusal on the part of the defendant made a tender of performance by the plaintiffs, previous to a bill of specific performance on this action; unnecessary. Sugden, 162, 163. 3 Douglass, 684. But no such tender was necessary. Sugden on Vendors, 160, -164. The bank did offer a good title, as is shown by the evidence. Templeman had no ultimate interest; it .was released, and his deed made with the consent of the bank, gave' a good title. Those who- are entitled to the money, which may arise fromi the sale of an estate are the substantial owners of it.. Sugden, 300. To sustain this suit, it is sufficient if a good title can. now be made, and this can be done under the deed of 7th March, 1807. Sugden, 250-1. Mr. Jones for the defendant. 1. There never was a complete contract entered into by Mr. Hagner. He made propositions, and they were never fully accepted by the bank ; nor was he at any time informed of the order, or determination of the bank thereon. It was the duty of the plaintiffs, when the money became due, to have, tendered a performance of their contract, and not to have postponed the same until September, 1821, the day before the action was instituted. No purchaser is bound to take an equitable title, and in this case the bank had not á legal title under the conveyance to Walter Smith, under which the title tendered was derived. The title must be complete at the time of performance Of the contract. . Sugden on Vendors, 158. When the original security is in form of a trust, it must remain so until the trust is executed, by a sale of the property in the time prescribed. A Court of Equity would not have confirmed the title to the defendant, they would have said to the trustee Walter Smith, go and execute your trust. As to the title of the 28th of September 1821, tendered to the defendant, it was not a valid title. By the law of Maryland, nodand can be conveyed by a power of attorney; it was not made by the bank, and it passed through Templeman,who was insolvent. The defendant could not be compelled to accept such a title. There is no authority to be found by which a vendor can call on another to complete a title which he contracted to give. . Entry on the property does not furnish any thing but a presumption, that a title would be made; and this was never done. As to the time which will be allowed for completing a title, the following cases were cited. Sugden on Vend. '284. 1 Marshall, 583. 6 Taunt. 259. 5 East, 198. 1 Smith’s- Rep. 390. The plaintiffs after the case had gone to the jury, exhibited a new title. The first was as a creditor; and the conveyance was to be derived from the trustee; the second title was under an old deed, by which the bank was authorized to convey. The deed of 1807 w^s controlled or revoked by the subsequent . deed; and notwithstanding that déed, the' trustee alone couíd make the sale. -1 Marshall, 285. 5 Taunt. 282. 3 Bos. $ Pull. 181. [MAJORITY — Mr. Justice Thompson] Mr. Justice Thompson delivered the opinion of the Court. — » This case comes up from the Circuit Court of the. District ©f Columbia, upon a writ .of error. It was an 'action against the defendant Hagner, on a special agreement to purchase of the plaintiffs two lots of ground in the city of Washington. The Court below, on the prayer of the defendant, instructed the jury, that upon the evidence given on the part of the plaintiffs, though found by them.to be true, would not entitle the plaintiffs to recover, in this action, the purchase money for the lots mentioned in the declaration. Under which instruction a verdict was found, and judgment rendered for the defendant;' to reverse which, -the present writ of error has be,en brought. The special agreement as stated in the declaration, is substantially, that'on the'25th of April, 1818, it was agreed between the plaintiffs and defendant, that the plaintiffs'should sell to defendant lots No. 1 and 2, in square 141, in the city of Washington, the property of the plaintiffs, at and for. the price of twenty-five cents, for each and every square foot, contained in' said lots; and that defendant agreed to purchase the lots, at that price, and to pay for the same, when thereunto required by the plaintiffs ; setting out the quantity of land and amount of the purchase monéy, with an averment, that the plaintiffs had full power and authority to make the sale, and that they then were, and ever since have been fully competent and able to make and deliver, a good and. sufficient deed, conveying to the defendant a good title in fee, to said lots. And that afterwards, on or about the 8th day of May, 1821, the defeud-ant declared and gave notice to the plaintiffs, that he considered the agreement and sale void, and would not comply with the same, and discharged the plaintiffs from, making or causing to be made any deed of conveyance, and the plaintiffs further aver, that afterwards, on the 28th September, in the year 1821, they being willing and able to make a conveyance of a good title to said lots, offered so to do, and requested the'defendant , to pay the purchase money, according to the terms of the agreement, which he refused to do. The first inquiry that naturally arises, is, whether any contract was in point of fact concluded between the parties. It has been objected, that.it does not appear that General Mason,- through whom, in behalf of the bank, the negotiation was carried on, had any authority for that purpose. There is certainly great plausibility in this objection. There is no evidence, expressly showing such authority. But this perhaps ought to be considered as having been waived by the defendant; as that part of the correspondence from which the contract is supposed to be collected, was carried on with him in his official character of President of the Bank. And the defendant, at no time, puts his objection to carrying the contract, (if any was made,) into execution, upon the want of authority in Mason, to make it. The contract is alleged, in the declaration, to- have been made on the 25th of April, 1818, and the letter of Mason, of ihat date, and signed by him, as President of the Bank, has been considered as closing the pontract. This letter is as follows • ' “ I have this day sold to Peter. Hagner, of Washington City, lots No. 1 and 2 in square 141 in Washington City, and belonging to the Bank of Columbia, at- twenty-five cents per square foot; payable at such periods as the bank may approve.” The time of payment being left to the option of the bank, it is said, that in 'judgment of law, the purchase money, was payable on demánd; -and this is no doubt true, if the bank had then closed the negotiation, and apprized the defendant that such was their determination, as to the payment of the purchase money, But this was not done; and the terms of the letter look to, and necessarily imply some further negotiation. The. payment was to be at such periods as the bank may approve. It was therefore clearly understood to be payable, by instalments; and the periods to be approved by the ban^, which "would'seem-to leave - the subject open to propositions tp be made on the part of Hagner, and submitted to the bank to be approved. And that such was the understanding of the parties,, is evident from the letter written by the. defendant, two days after, April 27th, 1818j to the President of the bank, as follows ; ■ “ Itwould be desirable to me to have the payments to make • for the lots No. 1 and 2 in square 141 purchased of you by me on Saturday, at 25 cents per square footpin proportions, and at periods, to be met by my income. I accordingly propose that the whole amount of the purchase money be divided into six quarterly payments, the first- to be on the first of October next. If this be approved by the. bank, I will give my notes, and I presume the bank will have no objections to give nie a deed. If however it be preferred, I will'bind myself to. pay the money, at the -times -stated above, an cl, receive a bond of conveyance, conditional to give a full title, when the money is paid. Do me the favour to-send me, in return, a memorandum of our agreement on Saturday.” Upon .this letter was written in pencil, by Genefa) Mason “accept, interest on each note as it ■ becomes due.” Whatever, therefore, might have been the right- of the bank ' to have closed the contract, in the terms of the letter of the 25th of April, it was certainly waived by an acceptance of the modification, contained in'the letter of the 27th of April. Nor would any contract seem to be closed by this-letter. It contained two distinct propositions, by the defendant; the one to give his notes for the purchase money, payable in six quarterly payments, the first to be made on the 1st of October then next, and take' 3. deed from-the bank: the other, to bind himself to pay the mOney at the times stated, and take a bond for a deed, to be given when the whole purchase money was paid. This necessarily required some further answer from the plaintiffs,' notj only to signify their electibn between the propositions ; but fb. do some further act, in confirmation of such election. Either to give the deed, or a bond for the deed. The note in pencil, made by the President of the bank, upon the letter, could not fairly be understood, as implying any. thing more than an acceptance of the proposition to pay by instalments; and settling the terms of the contract, to be concluded between the parties upon the bank’s electing, which proposition tó accept, as to the mode’of concluding the contract. But the contract could not be said to be ■ consummated, until such election'was made and the writings executed.' Here the matter rested for nearly *hree years,; without- any .thing being done’ on the part of the bank to close the contractu or to intimate, that they considered any contract in force, • in relation to the purchase-; and, that, not until after the defend- . ant had given them formal notice, that he considered the agreement void, and at an end. And he certainly had very good reason to think the bank.'so considered it. Or that no agreement had in fact ever been f «1- • eluded.- For the defendant' by his letter of the 7th.of Octooer 1818, gaye the plaintiffs notice that he was prepared to pay the first instajment; which according to his proposition fell due bn the fir?t of that month; and requesting of them a bond for á deed ; to which no answer appears to have been given, nor any one of the instruments paid or demanded ; although-the whole purchase money became payable .by the-first of January 1820, according to the proposed terms of the contract. ■ Upon this view of the case, it is at least very doubtful, whether any contract was concluded between the parties; and if the cause turned upon this point alone, the judgment of the .Court, below would be affirmed, by a division of opinion in this Court. But, as there are other.questions .in the cause, the determination of which leads to the same result, and upon which no difference of opinion exists, it has been thought proper to notice them. Admitting, then, that a contract was .entered into-Detween the parties, the -inquiry arises, whether the plaintiffs have shown such a performance on their part, as will entine them, in a’Court of Law, to sustain-an action'for'the recovery-of the purchase money. - In contracts of this description, the, undertakings of the respective parties are always considered dependent, unless a contrary .intention clearly appears. A different construction would-in many cases lead to the greatest injustice, and a purchaser .might have payment of the consideration money enforced upon 'him, and yet be disabled from procuring the property, tor which he'paid it.. Although many nice distinctions- are to be found in the books,' upon the question, whether the covenants or promises of the respective parties to the contract, are to be considered independent, or -dependent-; yet it is evident, the in"clination of Courts has strongly-favoured the latter construction, .as being -obviously the most just. The seller ought not td be compelled to part with his property, without receiving. the consideration: nor the purchaser to part with his money, without an equivalent in return.. Hence, in such cases, if either a vendor or a vendee wish to compel the other to fulfil his contract, he must make his part of the agreement precedent, and cannot' proceed, against the Other without an actual perform-, anee of "the agreement, on his part, or' a- tender and refusal. And an averment, to that effect, is always made in the declaration upon contracts, containing dependent undertakings, and ..thgt averment must be supported by proof. And that the one. now before the Court, must be considered a contract of this description,' cannot admit of a doubt. The -plaintiffs, however, aver that they were willing and able to make a conveyance of a good' title, and offered so to do. on the. 28th day of September 1821; but this was only the day before the suit was commenced, ■ and nearly two years after the time fixed for performance; and they set up, as an excuse for the delay in making the tender of a deed, the notice received from the defendant on.the-8th of May 1821; that he considered the ágreement void, and -refused to carry it into effect.- The time fixed for performance, is, at law,- deemed Of the essence of the contract And ift he, seller is not ready and able to perform his part of the agreement, on that day, the purchaser may elect to consider the contract at an-end. In Sugden’s Law of Vendors, 9,75, it is said — “ The general opinion has always been, that the day fixed -was -imperative on the parties at law. This was so laid down by Lord Kenyon; and has never been doubted in practice. ■ .The contrary rule would lead' to endless difficulties,- if in every case it must-be referred to a jury to consider, whether the act.was done within a reasonable time.; apd the precise contract of the parties would be avoided, in order to introduce an uncertain rule, which would lead to endless litigation. But equity, which- from its peculiar jurisdiction, is enabled to examine into the cause of delay in completing a -purchase, and to ascertain how far the day named was deemed 'material by the -parties, will, in certain cases.' carrv the agree- ' ment intoi'execution, although the time appointed ha-s elapsed. But he justly adds, perhaps there is cause to regret, that even equity assumed thjs power of dispensing with the literal performance of contracts, in cases liké those. It was urged, at the bar,’that the rule on this, subject was the same at law and in equity* and the case of Thompson vs. Miles, (1 Esp. Ca, 184,) was referred, to in support of this proposition. And it is 'true, that some of the remaks which fell from' Lord Kenyon, on the trial of that catise, would seem to countenance such an opinion. For he permitted the seller to prove, he had a good title; although thepower.of making that title was attained after the action was rought. This was certainly.-going great ieng . s for a Court of Law, But it ought to be observed, that in t, t case no time appears to have been fixed for completing the contract; and an application for thé title had not been made by the purchaser, previous to the action brought by the vendor for breach of the contract; which it.seems was considered necessary, in that case. But, that Lord Kenyon did not mean to be understood, as. holding that the evidence would have been admissible to sustain the action, if there had been a time fixed for the perform- . anee of the.. contract, is very evident from his doctrine in-numerous other cases before him. Thus in the case of Bury vs. Young (2 Esp. Ca. 641,) he says, a seller of an estate ought to be prepared to produce his. title deeds at the particular day. That a Court of Equity will under particular circumstances, enlarge the time. And in the cáse of Cornish vs. Rowley (1 Wheaton Selwyn 137,) the action was for money had and received, to reebver back money paid as a deposit on an agreement for the purchase of an estate, the defendant having failed to make out a good title, on the day when the purchase was to be completed; the counsel for the defendant said they were ready to make out a good title; to which Lord Kenyon replied. “ As to the sentiments I have long entertained relative to the purchase of rea.’ estate, I find no reason for receding from timin'; they have been confirmed by conversing with- those whose authority is much greater than mine. The vendor must be prepared to make out a good title on the day when the title is to become completed.” On which the counsel for the defendant asked, “Dol understand your Lordship to say, that though* the defendant .can now infalce out a good, title, yet, as that, title did not form a part of-the abstract, the plaintiff may avail himself-of that circumstance.” ' To -which Lord Kenyon answered, Hh„certainly may; and avoid the contract:” and he directed the./jhry to find a verdict for the plaintiff, for the deposit money. In the ease of Davis vs. Hone (2 Sch. & Lef. 347) Lord Redesdale said, á Court of Equity frequentlyid'ccrces specific perforitiance, when the action at ¡aw has been" lost by the default of the very party seeking the specific performance. To sustain, an action at law, performance must be averred, according to the. very terms of the contract.' And again in. the cáse of Lennon vs. Napper (2 Sch. &. Lef. 684) lie reiterates the same doctrine, that Courts of Equity in all cases of contracts for lands, have been in- the habit of relieving, where the party from his own neglect, had suffered a lapse of time, and from that and other' circumstances, could not sustain an action to recover damages, at law; for, at law, the party plaintiff, must have strictly performed his part of the contract. - And in the case of Wilde vs. Fort, and others, (4 Taunt. 334,) the rule is recognised, that if the vendor‘of an estate at auction, does not show • a clear title by the day specified, the purchaser may recover' back his deposit, and rescind the contract; without waiting to see whether the vendor may ultimately be able to establish a good title or not. A purchaser is not bound to accept a doubtful title. From these authorities it may be laid down as. a settled rulé, that at law, to entitle the vendor to recover the purchase money, he must aver in his declaration a performance of the contract on his part, or an offer to perform at the day specified for the performance. And this averment must be sustained by proofs, unless the tender has been waived by the purchaser. . The time fixed for-the performancé of the contract,-in this ‘ case, must be understood to have been the-1st of January 1820. The payment of the consideration money was to have been completed.on that day, and no part of it having been paid, the defendant had a right to abandon his contract, .unless the pláintiffs were then ready and offered to perform, on their part, of-■'which there was no evidence, whatever, offered upon the trial. . They have attempted, however, to show, that a tendel of a deed was rendered unnecessary, by reason of the letter of the defendant of the 8th of May 1821; in which he gave notice of rescinding the contract. But this letter can have no such effect.' It was written sixteen months after the time fixed for the delivery of the deed, and when the defendant had a right to rescind the contract. If before the period had. arrived, when the deed was to be delivered, the defendant had declared he would not receive it, and that he intended to abandon the contract, it might have dispensed with the necessity of atender, as the conduct of the defendant might in such case, have prevented the act from being done; and he who prevents a thing from being done, .shall never be permitted to avail himself of the non-performance, which he himself has occasioned. But that rule can never apply, except in cases where the act which is construed into a waiver, occurs- previous to the time fixed . for performance. The possession taken of the lots by the defendant, could,' at ' most, only, be considered a circumstance from which to infer, that he considered the contract-closed; but could not deprive him of the right of relinquishing it-, and restoring the possession, if the plaintiffs were unable to . make a-title to him, or neglected tó do it. The possession was.taken, doubtless, under a" belief that the contract would be performed.by the plaintiffs, and a full title conveyed to him; but if the contract was unexe-cuted, the defendant had a right to disaffirm it, and.restore the' possession; and would have sustained an action • to recover back the purchase money, had it been paid. (Sug. on Vend. 173. 183, and cases there cited.) The plaintiffs have therefore clearly failed to show such a performance, on their part, as- to entitle them, in a Court of Law, to call upon the defendant for payment of the purchase money. , ; But admitting, that no objection in point óf tipie.lay to the tender of the deeds, the day before the commencement óf the present action; no title Was thereby conveyed to the defendant, or at all events, not such a one as he would at any 'time have been bound to accept. It was a title derived fromTóhn.Tem-pleman, under the deed, of the .'31st of March 1809. Whereas Templeman had previously conveyed the same lots to. the plaintiffs, by his deed of .7th of’March 1807, in trust, with authority to' sell the 3ame for the payment of ¿ debt, due to the bank' and-to pay over to him the supplies," if any there should be. The legal, title to these lots is therefore still in the bank; and may be subject-to the trust declared in the deed, from any thing, that appeared upon the trial; - And .to allow the bank" to-recover the purchase- money, and turn the defendant over to a Court of Chancery, to obtain. a titile, would be going farther than any known .principles in. Courts-óf .Law will warrant; no act whatever haying been done by the plaintiffs, to transfer to the defendant the .title vested in them under the deed of 1807. To substantiate the present action under such circumstances, would be compelling the defendant to take a law-suit, instead of .the land, for which he contracted. Judgment ’affixmed> with me.ts.