
    MARCUS KOHNER, Plaintiff, v. SUSANNAH A. HIGGINS and JOHN O. HIGGINS, Defendants.
    CONTRACT FOR EXCHANGE OF REAL ESTATE.
    In a contract between parties for the exchange of real estate, where each party covenants to take property subject to a mortgage of a specified amount, “and to give a good warranty deed with full covenants, and free from all incumbrances except the mortgage specified,” a tender of a deed by one party that contained after the habendum clause the following words, “subject, however, to a mortgage (describing the same fully) which said mortgage, with the interest, &c., the party of the second part hereby and by the acceptance of these presents assumes and agrees to pap,” is not a fulfillment of the contract. It is clearly a departure from the provisions of the contract, for it places the party to whom it was tendered in a different position in respect to the payment of the mortgage than if the deed had simply conveyed the property subject to it, and the party offering such deed was left in the position of having made no tender.
    If a party from bad faith or any other motive or cause, tenders a deed that openly or covertly varies in its terms from that called for by the preliminary contract, the fact that the vendee may not discover it or may not specifically point out the objection, when so tendered, does not place the party in any better position than if the objection had been made.
    
      In a contract of this character the covenants are mutual. The act to be done by one, is the consideration for the act to be done by the other; and consequently neither can maintain an action for non-performance against the other, until he has performed or offered to perform his part of the contract (Morris v. Sliter, 1 Den. 59; Williams v. Healy, 3 Id. 363).
    Before Curtis, Ch. J., and Speir, J.
    
      Decided January 2, 1877.
    In this case the complaint was dismissed, and the exceptions were ordered to be heard in the first instance at the general term. The action was brought to recover damages for failure to .perform a contract for the sale and conveyance of real estate situate in the city of New York.
    The plaintiff and defendants entered into an agreement, dated March 18, 1874; whereby the plaintiff agreed to sell to the defendants a certain house and lot in Sixty-first street, for the sum of twenty-eight thousand dollars, which the defendants agreed to pay as follows : to take the property subject to a mortgage of sixteen thousand dollars, and to give for the balance a house and lot on Fiftieth street, subject to a mortgage of six thousand five hundred dollars, “and ,to give a good warranty deed with full covenants, free from all incumbrance, except the mortgage;” and the plaintiff covenanted “ on receiving such payment at the time and in the manner mentioned,” to deliver a deed of the premises in Sixty-first street, free from all incumbrances except the sixteen thousand dollar mortgage.
    The plaintiff in his complaint alleges, that he duly tendered a deed in pursuance of such contract, of the house and lot in Sixty-first street, and demanded of the defendant a deed of the house and lot in Fiftieth street in pursuance of the contract, but that defendants could not give such deed in consequence of certain covenants and restrictions, to which the property was subject, and by reason thereof, failed to perform their agreement.
    The answer denies the tender, and alleges that defendants were ready and willing to complete the contract, and tendered a deed in conformity with the same, which was refused by the plaintiff, who on his part also further refused to deliver a deed of the house and lot in Sixty-first street in pursuance with the terms of the contract.
    
      Eugene L. Bushe, for plaintiff.
    
      A. S. Diossy, for defendants.
   By the Court.—Curtis, Ch. J.

The evidence shows that the deed which the plaintiff claims he tendered to the defendants, contained after the habendum clause these words :

“Subject, however, to a mortgage thereon to the North America Life Insurance Company for sixteen thousand dollars and interest, dated June 16,1870, and recorded in the office of the register of the city and county of New York, in liber 964 of mortgages, page 352, which said mortgage, with the interest to grow due thereon, the party of the second part hereby and by the acceptance of these presents assumes, and agrees to pay."

This was clearly a departure from the provisions of the contract. The i effect of this change was to place the defendants in a different position in respect to the payment of the mortgage, than if the deed had simply conveyed the premises subject to it. The deed tendered was not in accordance with the contract of sale, and the plaintiff was left in the position of having made no tender. If a vendor chooses from bad faith, or any other motive, to tender a deed that openly or covertly varies in its terms from that called for by the preliminary contract, the fact that the vendee may not discover it, or may not specifically point out the objection when so tendered, does not place the party tendering the instrument in any better position.

The plaintiff claims that, to maintain his action, it was unnecessary for him to make any tender whatever, of a deed of the Sixty-first street premises, for the reason, that performance by the defendants was a condition precedent, and that he was not called upon to tender his deed to the defendants until after they had made payment, and that, by the terms of the contract, payment and conveyance were not concurrent.

This is not the theory upon which the complaint is drawn, and is not the interpretation placed upon the contract by the parties.

The covenants in the contract between the parties are mutual. The act to be done by the one is the consideration for the act to be done by the other. Both parties are to perform at the same time and place. It is apparent that these covenants must operate as mutual conditions, and consequently neither party can maintain an action, until he has performed or offered to perform, his part of the contract (Morris v. Sliter, 1 Den. 59; Williams v. Healy, 3 Id. 363).

The plaintiff’s exceptions should be overruled, and judgment rendered dismissing the complaint with costs to the defendant.

Speir, J., concurred.  