George Van Campen, Respondent, v. Henry Knight, Appellant

George Van Campen, Respondent, v. Henry Knight, Appellant. (Argued January 15,1875; decided May term, 1875.) This was an action for the specific performance of a contract for the sale of certain real estate. Defendant contracted to sell to plaintiff certain real estate for $2,000, $600 to be paid April tenth, thereafter, and the balance in annual installments. The contract provided, “that at the time of making the payment of the sum of $600, and on or before the first day of May, next, the said party of the first part (defendant) shall convey,” taking a mortgage for the residue of the purchase-money. Plaintiff was authorized to enter immediately upon the premises. This he did soon after, and made valuable improvements. . On. April twelfth, thereafter, plaintiff tendered $600 with two days’ interest and demanded a deed. Defendant refused to receive it and the money was deposited, subject to his order, of which he had notice. On April seventeenth plaintiff tendered a bond and mortgage, and also presented a deed filled up ready to be executed and demanded that defendant execute it, which he refused, on the ground that plaintiff had not paid as agreed. This action was commenced on the same day the tender was made. Held, that as time was not the essence of the contract the tender of the money was as effectual as if made on the tenth and the tender of the bond and mortgage, the demand of the deed and the refusal put defendant in default, the more especially so as plaintiff’s right to a conveyance was repudiated, and no pretence made that plaintiff required until the first of May to consider the matter; that it was the intent of the contract that the payment of the $600 and the delivery of the deed should be simultaneous acts, and that, therefore, the action' was not prematurely brought. Geo. B. Bradley for the appellants. D. H Bolles for the respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for affirmance.' All concur. Judgment affirmed.