
    ALBERT GRANT vs. JOHN HOWARD, CATHARINE HOWARD, HIS WIFE, AND HORATIO N. GILBERT.
    In Equity. —
    No. 3375.
    I. Where a party to an agreement for a conveyance of real estate requests the deed to be made to a person not named in the agreement, and accordingly the conveyance is made to such person, who refuses it on. the ground that there is an outstanding trust-deed, and that he will not take the title thus embarrassed, no further tender is required on the part of the owner after such refusal.
    II. Where the trustee in such deed is dead, and the debt secured by the incumbrance has been paid, and the deed of trust has been released by the heirs at law of the trustee, the owner can make a good conveyance of the property, in pursuance of a contract to give a clear title, without going into a court of equity.
    STATEMENT OE THE CASE.
    The complainant seeks to enforce the specific performance of a contract to convey to him or his assigns square No. 839, as designated on the plat of the city of Washington, in the District of Columbia. The contract is as follows:
    “ In consideration of one hundred dollars, ($100,) the receipt of which is hereby acknowledged, the undersigned agrees to convey, on demand of Albert Grant or his assigns, within thirty (30) days after date, to said Albert Grant, or to his assigns, and to his or their heirs, with full covenant of seizin and warranty, the following-described land, with all the improvements, privileges, hereditaments, and appurtenances thereunto belonging, viz, square specified on plat of the city of Washington, District of Columbia, as square numbered eight hundred and thirty-nine, (839.) If such conveyance shall be so demanded and executed, the said Grant shall pay the undersigned for said land as follows, viz: Twenty thousand dollars, ($20,000,) in thé following payments; two thousand nine hundred dollars within thirty (30) days from the time a clear title can be given to said square, and the balance in two (2) equal payments of three (3) and four (4) years from date, said payments to be secured to the undersigned by notes drawing six (6) per cent, interest, payable semi-annually, with a deed of trust upon the property. Said Grant is to assume the payment of a note dated and payable to the order of Thomas Weaver, three years from date, for the sum of six thousand dollars, ($6,000,) the undersigned paying the interest thereon to the date when deeds shall be exchanged between the parties to this agreement.
    “HORATIO N. GILBERT,
    “ Agent for John Howard.
    
    (Dated:) “Washington, D. C., November 13, 1871.”
    By the terms of this agreement, executed by his agent, the defendant, John Howard, undertakes to give the complainant, thirty days after the 13th day of November, 1871, on demand, a conveyance of said premises, and the complainant is to pay the sum of $20,000, the first installment within thirty days from the time a clear title can be given, and the balance on a note of $6,000 to Thomas Weaver, and in two other equal payments of three and four years from date, to be secured by a trust-deed upon the premises.
    The complainant avers that he never abandoned the contract, but has demanded a conveyance in pursuance of the same, and that defendant, Howard, has neglected and refused to give it.
    The testimony establishes the fact that the complainant directed and requested the conveyance of said square to be made to John P. Newman, who would pay the consideration specified in the agreement, and who would execute a deed of trust to secure the payments, as stipulated for. A deed was accordingly prepared and executed by said Howard and wife, and a deed of trust was prepared to be executed by Newman. It is also proved that the conveyance was declined on the part of Newman, on the ground that there was an outstanding deed of trust on the square, which had not been released in such a manner as to enable the said Newman to take a clear title. The circumstances in regard to the trust-deed just mentioned are these: In September, 1862, the defendant, Howard, executed a deed of trust on this land to Henry Naylor, to secure two promissory notes, for one thousand dollars each, payable to the order of Middleton & Beall. Naylor died without releasing the deed of trust. The debt secured by this trust-deed was paid, and the heirs of the trustee executed a release of such deed of trust. The deed was in the usual form, to the trustee and his heirs. The complainant and the said Newman refused to receive the conveyance of the property unless the release was decreed by a judicial proceeding in equity. A copy of the deed of conveyance was submitted to both Grant and Newman, and they declined to receive it, alleging that a release by the heirs of Naylor fails to make a clear record title.
    The bill was dismissed with costs, and the case is now here on appeal.
    
      F. P. Cuppy, for complainant, claims:
    1. That said contract binds respondent to give him a clear title to said square, and the deed of release by the heirs of Naylor fails to make clear the record title, because—
    
      a. There is no record evidence that the parties executing such deed of release are the heirs, and only heirs, of the deceased trustee.
    
    
      b. The fact that said parties are the heirs, and only heirs, of said trustee cannot be made a part of the record title, except by the finding of a court of record, in a properly-instituted judicial proceeding.
    
      c. That in the execution of said contract, by its terms, the first act enjoined is the execution and delivery, or tender, of a deed by respondent to complainant, and that the proof conclusively shows that no such deed was ever tendered.
    A. G. Riddle and William A. Meloy for defendants.
   Cartter, Ch. J.,

delivered the opinion of the court:

We think that Grant is concluded by the fact that he directed the deed to be made to John P. Newman, and he will not be heard now to say that it should have been made to himself. The deed was in the name of Newman at his instance, and was submitted for examination to Newman’s counsel, and it was Newman who undertook finally to pay the consideration according to the terms of the contract. The complainant has therefore no just right to expect the equitable interposition of a court of equity to enforce the perform anee of a contract which has been modified in this respect by the consent of both parties.

The defendant Howard undertook to perform his part of the agreement, and executed a conveyance. A question arose as to the incumbrance upon the property. Counsel were called in and advised with, and the conveyance was declined on the part of Newman, for the sole reason that there was an outstanding trust-deed upon the property which embarrassed the title. We are of the opinion that when the conveyance was refused for that reason no further tender was required, because the party entitled to receive it asserted that he would not take the title. The objection to the conveyance had no legal foundation. The debt which the incumbrance secured had been paid; and, in addition to this, it had been released and extinguished by the heirs of the trustee; the only parties who could rightfully release it. Under .these circumstances Grant could not demand that they should go into a court of equity, for that jurisdiction could give no more relief than the proper parties had already conferred without litigation or expense. The legal title could not have been made more perfect by any court, and we therefore think that the decree of a court was unnecessary.

The decree below is affirmed.  