
    CASE 40. — ACTION BY H. F. FINLEY AGAINST J. J. NEAL.—
    January 12, 1910.
    Neal v. Finley
    Appeal from Whitley Circuit Court.
    W. T. Davis, Circuit Judge.
    Judgment for plaintiff, defendant appeals. —
    Affirmed.
    1. Tender — Mode and Sufficiency — Check—Objections.—Tender of payment by check is sufficient where the drawer has sufficient funds in the bank to meet the payment, unless the refusal is upon the ground that the tender is not in lawful money.
    2. Specific Performance — Necessity of Tender — Waiver.—When a party covenanted to convey the mineral in lands on payment of a certain sum, his refusal to convey on demand was a waiver of tender of the purchase price by the purchaser giving him an immediate action for specific performance.
    3. Mines and Minerals — Conveyances and Contracts — Grants of Mineral and Mining Rights — Servitudes.—A covenant to convey the mineral in a part of certain lands, together with all necessary mining rights, included a conveyance of such easements in the balance of the land as were necessary to accomplish the mining and removal of the mineral.
    4. Mines and Minerals- — Conveyances and- Contracts — Grants of Mineral and Mining Rights — Servitudes.—Where a party covenanted to 'convey the mineral together with the necessary mining rights in certain land which was a parcel wholly within a larger boundary of his land, a right of way over the land not conveyed, as of necessity, was included in the covenant.
    C. W. LESTER for appellant.
   Opinion of the Court by

Judge O’Rear

— Affirming-

Appellant sold and covenanted to convey to appellee all the coal and other mineral within a certain boundary of land in Whitley county, at the rate of $4 an acre. The quantity of land was so much of the tract described “as is covered by what is known as the Blue Gem vein of coal.” The quantity was to be ascertained by survey within three months, to be done by Finley. A covenant of the bond runs: “I bind myself and representatives to make said Finley a good and sufficient title to said lands, together with all necessary mining rights, when the purchase money is paid.” Within three months after the date of the contract, Finley caused the land” to be surveyed. The surveyor reported that the quantity covered by the Blue Gem vein of coal is 45.5 acres. Thereupon Finley tendered appellant Neal his cheek upon a bank of Williamsburg, in which he had enough on deposit to meet the check. Neal declined to accept the check, upon the ground that the deed prepared by Judge Finley did not properly locate the land as to the name of the water course upon which it is situated, and, when that was corrected, declined to sign the deed. His reason for declining seems to have been alone because he was disappointed in the quantity of land disclosed, claiming that the true area was 65 acres. He offered to convey if paid upon the basis of 65 acres. This suit for specific performance resulted. The only evidence in the record is the bond, which is the basis of the suit, and the depositions of Judge Finley and his surveyor, Lewis Francis. Judge Finley’s testimony relates to the tender. Francis testified as to the time and manner of making the survey. He said that the outcropping of the Blue Gem vein of coal was ascertained, and the boundary agreed to by appellant, Neal, who was present; that he ran the lines and made the measurements and calculation thereon accurately; and that the area under which that vein appeared is 45.5 aeres only. Upon' the record thus presented, the circuit court adjudged a specific execution of the contract, and ordered Neal to sign and deliver a deed in conformity t® the contract. The court defined the boundary, as testified to by Neal, adding that the deed should contain an easement of right of ingress and egress over Neal’s other land not conveyed, so as to enable grantee to mine and remove the coal from the premises conveyed. Neal appeals. He assigns as error: First, that the allegation o'f tender was not proved; and, second, that the cpveyance ordered exceeds the covenant in the bond, in that the bond did not contain an ^agreement as .to the easement. ,

It is true that ordinarily a tender of payment in any way than by legal tender money is not good. But the parties may waive that feature of the law. If tender is made in bank bills, or check, the -tender will be deemed sufficient (provided, in case of check, the drawer has sufficient funds in the bank to meet the payment) unless the refusal is based upon the ground that the tender is not in lawful money. McGrath v. Gegner, 77 Md. 331, 26 South. 502, 39 Am. St. Rep. 415; Jones v. Overstreet, 4 T. B. Mon. 547; Campbell v. Williams, 15 Ky. Law Rep. 704.

The objection by Neal was not based on the ground that the tender was by check. Furthermore, when lie declined to execute the deed at all, Finley was not obliged to tender the payment-of the balance of the purchase price. Neal’s act in refusing to convey was a waiver.of the tender by the grantee, and gave the latter immediately an action for specific execution. The clause in the contract that Finley should have all necessary mining privileges was an agree* ment to convey him such easement as was necessary in the property out of which the estate was to be conveyed to enable him to enjoy the right to mine and remove the coal. But, independent of that, it appears that the parcel to be conveyed was wholly within a larger boundary of the grantor’s land. In that state of case, it is implied in the contract that a right of way, as of necessity, was included in the covenant to convey.

"We perceive no error in the record.

Judgment affirmed.  