
    SHINN ET AL. v. ROBERTS.
    1. Commissioners, who have sold lands under a decree of the Orphans’ Court, may bring an action in their own names, against a purchaser, who has failed to comply with the conditions of sale.
    2. Where it is provided by the conditions of sale, that, if a purchaser shall fail to comply with the terms of the contract, the property will be exposed to sale a second time and the purchaser held liable for any loss that may ensue, the vendor, in an action on such contract, cannot recover the difference between the two sales, unless the conditions of the second sale are the same, or at least so far as regards the credit, equally beneficial to the purchaser, as those of the first sale.
    3. The proceedings in the Orphans’ Court, and the report of the commissioners, are not competent evidence of the number of acres, in order to ascertain the extent of the alleged liability of the defendant.
    4. Whether a condition be precedent, or otherwise, depends upon the intention manifested by the parties; and in agreements for purchase, the covenants of the respective parties will always be construed dependent, the one precedent to the other, unless a contrary intent appear.
    5. In cases of dependent covenants, neither party can bring .an action against the other, without averring performance, or some valid excuse, equivalent thereto. The vendor cannot sue, without averring and proving the execution and tender of a deed, unless discharged from so doing by the purchaser; and such discharge'must be pleaded, or it cannot be proved.
    6. Time fixed for performance is of the essence of the contract; and when it enters into the performance of a condition precedent, the plaintiff' must aver and prove it accordingly; the rule applies to an hour, as well as to a day.
    7. Proof that the deed was executed two hours, and tendered nine hours, after the lime spepified in the condition, no waiver by the defendant or other excuse being pleaded, is not sufficient.
    Oír Rule to show cause why the verdict, which had been rendered for the plaintiffs, should not be set aside.
    This was an action of assumpsit on a special agreement, for the sale of certain real estate, situate in the county of Burlington. The contract of sale was made by the defendant with the plaintiffs, who had sold, as commissioners, by virtue of an order of the Orphans’ Court of the county of Burlington. The defendant, at the commissioner’s sale on the 2d of January, 1841, bid off a part of the real estate sold; to wit, a farm, situate in Northampton township in said county, alleged to contain 146tt°t acres for the price of $117 per acre. The conditions of sale, (among others,) were, that the purchaser should pay one-third of the amount of the purchase money on the 20th of March then next, and should give satisfactory security in the mode specified for the remaining two-thirds; should pay one other third in two years, and the remaining one-third in five years from the delivery of the deed, with interest. The sale was subject to a lease of the farm, for three years from the previous 25th day of March, and the rent accruing thereon up to the 25th day of March then next, was reserved. The deed was to be executed to the purchaser on receiving the first payment and satisfactory security for the balance, and was to be executed and ready for delivery on the said 20th'day of March then next, ,at 10 o’clock, A. M. at the house of Charles Bryan, inn-keeper in Mount Holly. In case the purchaser should neglect to receive his deed at the time and place specified, and pay and secure the purchase money, the conditions farther provided, that the property should be advertised and sold again ; and (hat, if it should produce a less sum than the former bid and interest and expenses, the purchaser should be held liable lor the difference.
    The defendant, who supposed .himself relieved from the obligation of his contract, having refused to receive a deed and comply with the conditions of sale, the plaintiffs proceeded to offer the farm again at public sale. The second sale took place on the 31st day of July, 1841. The conditions, so far as regarded ■the credit to be given were, that one third of the purchase money should be paid on the 25th of October then next, when the deed would be delivered, and that satisfactory security should be then given for the remaining two-thirds; that one other third should be paid in one year from the 25th day. of March then ¡next, with interest from the said 25th day of March ; and the ¡remaining one-third should be paid in four years from the same time, with interest. The purchaser was allowed interest on the first installment, from the time of payment until the said 25th day of March, to which time the rest was reserved ; the farm, as at the first sale, being sold subject to the above mentioned lease.
    At this second sale, the farm sold for the sum of $99 per acre only ; making a loss between the first and second sales ; to recover which and expenses, this action was brought.
    The declaration sets forth the sale to the' defendant, and his neglect and refusal to receive a deed and to comply with the conditions, and the consequent subsequent sale. The declaration also contains an express averment, of the readiness of the plaintiffs to execute a good and sufficient title and conveyance for the said premises ; and that they did make and execute such conveyance; and that, on the day and at the place specified in the conditions, then and there, at the hour of ten o’clock in the forenoon of that day, they were ready and offered to deliver the said conveyance to the said defendant, according to the terms and conditions of the said sale.
    The cause was tried at the Gloucester Circuit in March 1843, and it appeared in evidence that the defendant came to the Inn of Mr. Bryan in Mount Holly, on the day appointed for the delivery of the deed about a quarter before ten, and remained an hour or more, and that he inquired for the commissioners. After the departure of the defendant, the commissioners arrived and procured a deed to be drawn, which they then executed and acknowledged ; the same being ready for delivery perhaps shortly before one o’clock. The defendant, who had been to Bristol in the mean time, on his return again stopped at the same house in the evening of the same day, and the deed of conveyance was then tendered to him by the commissioners. The tender was made at early candle-light about 7 o’clock in the evening; and on its being made, the defendant asked if it was a warranty deed, and said if not he would not receive it.
    A letter from the defendant to one of the commissioners, in relation to the purchase, and written shortly before the day appointed for the delivery of the deed, was read in evidence. In this letter, among other things, the defendant said that he would give no such price with the lease on the farm, and concluded by saying “ I hereby submit this to the consideration of the commissioners for a time.”
    There was no evidence of the number of acres, further than what appeared on the face of the proceedings in the Orphans’ Court, where the farm was described as containing 150 acres more or less. The deed tendered by the plaintiffs stated that the premises contained 146tA acres.
    The Justice on the trial instructed the jury, that the defendant, not having tendered the money, it was not necessary for the plaintiffs to tender a deed.
    That if it ever had been necessary, the defendant had absolved the plaintiffs from the necessity of such tender, on the 25th day of March; and that if the defendant desired the deed, he should have given notice accordingly.
    The jury found a verdict for the plaintiffs for the sum of $2,-653.83, being the difference between the two sales and expenses of re-sale, &c. On the coming in of the postea, a rule was taken to show cause why the verdict should not be set aside, and a new trial granted.
    
      A. Browning for the defendant, in support of the rule.
    1. If the plaintiffs had not lawful authority to sell, the defendant was not bound to accept their deed ; and they were bound to show that they were clearly entitled to make the sale. If a power of sale be defective, or even doubtful, the purchaser is not bound to accept the deed. Atkinson on Titles, 550, 558, 20 Law Library; Wheat v. Hall, 17 Ves. 80; Judson v. Wass, 11 John R. 525: Carpenter v. Bailey, 17 Wend. 244.
    In this ease, the power of sale on the part of the plaintiffs was void, or at any rate voidable. The power of the Orphans’ Court to order a sale is given by statute, and if not conferred by the statute no such power exists. Mr. Browning then cited and examined the different statures to show, that the authority of the Court to order a sale did not reach the present case. Act 16th Dec. 1784, Pat. 59; Act 11th Nov. 1799, Pat. 89. This act is still in force. Elm. Dig. 379. Act 7th Feb. 1816; Rev. L. 597, Elm. Dig. 4 94; Act 13th June, 1820, § 19; Rev. L. 782, Elm. Dig. 384.
    But if the order was not void, for want of jurisdiction it was voidable. The order for sale was based on the prior order for division; if the basis was defective, the second order must be defective in consequence. The order to divide was defective, because it does not specify the number of shares, nor among whom the estate was to be divided. Elm. Dig. 382 pl. 13; 3 Green’s Rep. 92. Elm. Forms 339.
    But the order was defective because it was an order to divide a reversionary interest, and not a present interest in this land. At the time of the order, the land was under lease for three years, Stevens v. Enders, 1 Green 271. The case of Clarissa Burroughs, Ib. 284. Though the order may be valid until set aside by direct proceeding, still the defendant was not obliged to take the deed if there was any defect in the title.
    2. The plaintiffs were bound to prove their allegation, that they tendered the deed to the defendant, at the time and place mentioned in the declaration and in the conditions of sale. Proof of tender at another time and place was not sufficient; the proof must be according to the allegation. Specific performance has often been decreed in equity, when the action at law has been lost, as when the terms were not strictly performed ; but to sustain an action at law, performance must be averred according to the very terms of the contract. Sugden on Vendors 
      246; Davis v. Horn, 2 Sch. and Lefroy 341. Ib. 748. Blood v. Goodrich, 9 Wend. 79.
    In mutual conditions, if either party will proceed, he makes his own performance a condition precedent, and he must aver and prove it. Egbert v. Chew, 2 Green 447, 452, 464; Porter v. Rose 12, John. 209.
    The letter to one of the commissioners did not amount to a waiver, and did not discharge the plaintiffs from their obligation to prepare and tender the deed. But if so, and if they might have excused themselves in their declaration, still under these pleadings, they were bound to prove their averment.
    3. As to the re-sale. If it is intended to hold a purchaser for the difference between two sales, it is necessary that the second sale should be on the same conditions, as near as may be, as the first sale.
    4. The sale was made by the acre, and it was necessary to prove the number of acres, in order to ascertain the liability of the defendant. Of this there was no legal proof.
    
      G. D. Wall and W. N. Jeffers for the plaintiffs contra.
   The opinion of the Court, Nevius, J. dissenting, was delivered by

Carpenter, J.

This is an action of assumpsit. The plaintiffs are commissioners, authorized by' a decree of the Orphans’ Court of the county of Burlington to make sale of the real estate of one Joseph C. Haines, who died seized thereof and intestate. The declaration is special, to recover the specific difference between a first and a second sale; the defendant, a purchaser at the first sale having refused to comply with the conditions of such sale; and the premises on a second sale bringing a much less sum.

Though not made a point on the argument, doubts have been suggested as to the ability of the commissioners to bring a suit in their own, names on the contract entered into between them and the defendant. I do not perceive any difficulty on that point. In the case of such sales, the deed cannot ordinarily be previously prepared and ready for execution on the very day of sale; the purchaser until the sale has taken place being unknown; nor can the purchaser, in the uncertainty of becoming such, be expected to come with the funds to complete the contract. Convenience has rendered it desirable, and even necessary, to insert in the usual conditions of such sales, that the deed shall be delivered and the money paid or securities given, on a subsequent day. In order to bind both parties to the performance of their contract, such contract is necessarily reduced to writing and signed by the parties. I apprehend it will not lie in the mouth of a defendant, who has made such express stipulations with persons having a power of sale, to deny their ability to bring suits for a breach of such contract. The inconvenience would be great, which would result were a rule established that would destroy the ability of commissioners or public officers, selling by mere authority of law, to bring suit on an express agreement. It would place it in the power of any unscrupulous and designing person to bid off property, and afterwards to take it or reject it as caprice or interest might make it desirable. I do not perceive any inconveniences to follow the power. The commissioners are bound to sell for cash, and they must account for the whole sum, for which the property may have been sold. Any other course must be at the hazard of the persons making the sale, and is usually the result of special agreement; as an agreement on the part of the parties in interest to receive the securities taken by the commissioners. Such an arrangement is of frequent occurrence, because a credit given ordinarily produces a better sale. The proceeds of any suit brought by the commissioners, as in the present case, cannot be for their private benefit. Their duty under the authority of the law, being to some extent in the nature of a trust, the money recovered, after deducting expenses and a reasonable remuneration to the commissioners, will be the money of the parties in interest, for whose benefit the sale was made, and its payment over would be enforced by the proper tribunal.

In concurring in the propriety of setting aside the verdict in this case, I do so for the reasons and on the points following.

1st. As to the re-sale. In order to entitle the plaintiffs to recover, in an action like the present, I hold that the second sale must be on the same conditions as the first, as near as may be; or at- least on conditions equally beneficial to the purchaser, so far as regards the credit to be given. The remedy is harsh and rests strictly on the contract; and in my judgment, the plaintiffs ought to be held to show, that they are within the spirit and letter of such contract. It might be ruinous to purchasers, if property could be offered for sale on a considerable credit, and in case of failure on the part of the purchaser to comply with the conditions, the property could be set up at a second sale, either for cash or a reduced credit, and the first purchaser held liable for the difference. Such failure may happen from ignorance, from inadvertence, from subsequent misfortune; and, in the application of an action so harsh and penal, the vendors should be held, in their subsequent sale, to conditions under .which a disposition equally productive' could' ordinarily be expected. I hold the answer of the plaintiffs’ counsel, that the vendors have a right to make the conditions of the second sale such, that the second sale in regard to the credit given, shall be equally beneficial to them, as the first would have been, had its conditions been complied with, to be unsatisfactory. Suppose the first sale to have been on a credit of one year — no unusual period of credit — in case of non-compliance, shall the vendors be permitted, at the end of a year, to offer the property again for sale, but for cash, and hold the first purchaser liable for the difference ? In this case, the credit on the second sale was lessened, and I suppose materially, to the probable injury of the sale; but as I know of no mode by which the extent of such reduction may be ascertained and fixed, so as to produce no injury, I hold that the credit cannot be reduced at all, if it is intended to resort to the first purchaser in this form of action in order to recover the difference between the two sales.

2ndly. As the sale was made by the acre, it became necessary on the part of the plaintiffs, to prove the number of acres in the farm, in order to ascertain the difference of the two sales and the extent of the alleged liability of the defendant. The plaintiffs offered no direct evidence of the number of acres. The deed, tendered by them to the defendant, described the premises as containing 146 acres; and upon this quantity the plaintiffs based their claim and the jury rendered their verdict The proceedings in the Orphans’ Court, the order of sale, &c., described the farm as containing about 150 acres more or less, and the Judge, who tried the cause, instructed the jury, that these proceedings were prima facie evidence of the quantity of land sold. In this I apprehend the Judge erred. The vague description necessary merely to identify the property, intended to be the subject of such proceedings, is no evidence to fix the liability of this defendant. Yor can the plaintiffs, though acting in a public capacity and under oath for the due performance of their duty, by their own statements in their report or in their deed, be permitted to make evidence for themselves, in their own cause.

But lastly: one of the conditions of sale in this case was: “ The deed will be executed and ready for delivery to the respective purchasers, on the said 20th day of March next, at 10 o’clock, A. M. of that day, at the house of Charles Bryan, inn-keeper, in Mount Holly, in said county; and in case any of such purchasers shall neglect to receive his deed at the said time and place, and pay, &c., the property will be advertised and sold again, and if it produce a less sum than the former bid and interest and expenses, the purchaser will be held liable for the difference.” It is not necessary again to recite the particular terms of the payment to be made and the security to be given for the balance. It is sufficient to say, that it is a case of dependent covenants. In great relaxation of the technicalities, with which this branch of the law of contracts was formerly loaded and perplexed, it is not now the employment of any particular word, which determines a condition to be precedent, but the manifest intention of the parties. One of the rules, upon which the construction depends, is that where the mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. As where, in the conveyance of property, the whole of the consideration money is either to be paid or secured, on the delivery of the deed. Such is a plain case of stipulation for a contemporaneous performance, a performance uno flatu, and where neither party intends to trust the other. In agreements for purchase indeed, it is now well settled that the covenants are to be construed according to the intent of the parties, and are therefore always to be construed dependent, unless a contrary intent appears. 1 Sugden Vendors 271, (*372,) Bank of Columbia v. Hagner, 1 Peter’s R. 464; in Glazebrook v. Woodrow, 8 T. R. 374. The seller ought not to be compelled to part with his property, without receiving the consideration nor the purchaser to part with his money, without an equivalent in return. Therefore, if either a vendor „or vendee wishes to compel the other to observe the contract, he immediately makes his part of the agreement precedent; for he cannot proceed against the other without an actual performance on his part, or a tender and refusal. On the one hand, the purchaser cannot maintain an action for the non-delivery of the deed, without having first paid or tendered the money. Harvey v. Trenchard, 1 Halst. 126; Ackley v. Elwell, 5 Halst. 304. So on the other hand, a vendor cannot bring his action, for breach of the contract, without first having executed and tendered the conveyance, unless the purchaser has discharged him from so doing ; and an averment of such tender must be made in the declaration, and must be supported by proof. Egbert ads. Chew, 2 Green, 447; Bank v. Hagner, 1 Peter’s R. 467; Johnson v. Applegate, Coxe, 233; Green v. Reynolds, 2 John. Rep. 207.

To be sure, if the one party has discharged the other from the strict performance of the condition ; if he has rendered the execution and delivery or tender of a deed, futile and unnecessary by an express declaration that he will not receive it; then, the party proceeding by setting out that excuse upon the face of the declaration, may be relieved from the necessity of proving the offer to perform his part of the mutual agreement. If the defendant prevent the performance of a condition precedent by his own neglect or default, it is equal to a performance by the plaintiffs. Hotham v. East India Co., 1 T. R. 638. In the case of Jones v. Barkley, Doug. 684, where the plaintiff was ready and offered to perform his part, but was discharged by the other; upon averring such discharge in the declaration, it was held that the plaintiff might maintain his action without proving a tender. But if a party plead a tender he must prove it. Per Buller, J., Doug. 695. Such may be regarded as the unquestioned rule. It is unnecessary to examine the letter, written by the defendant to one of the commissioners, to ascertain whether it contains such a declaration of the defendant’s intention not to receive the deed and fulfil his part of the contract, as would relieve the plaintiffs from their duty to execute and tender the deed. They have not pleaded the discharge, and therefore cannot use the letter, for the purpose of showing a waiver on the part of the defendant of his right to the performance of this condition precedent. Unless pleaded, the waiver, if any, cannot be proved. The plaintiffs have pleaded a tender, and they must prove it according to the averment in the declaration.

As I hold it, the time fixed for the performance, is at law deemed of the essence of the contract. It is true that it is not, generally, so considered in equity, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. Courts of equity, for the most part, have regard to time only so far as it respects the good faith and diligence of the parties. Thus courts of equity, sometimes, will not decree a specific performance, though damages may be recovered at law. So those courts frequently decree a specific performance, when the action at law has been lost, by the default of the very party seeking the specific performance, if it be notwithstanding conscientious that the agreement should be performed. It is thus, in cases where the terms of the agreement have not been strictly performed on the part of the person, seeking specific performance; though to sustain an action at law, performance must be averred according to the very terms of the contract. 2 Story, Eq. Jur. § 776, et seq.; 1 Sugden, 245, *340; Taylor v. Longsworth, 14 Peter’s R. 174; 5 Vesey Jr., 719, note to Sumner’s edition.

“ The general opinion,” says Sir Edward Sugden, 1 Yol. 294, 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.” He adds, that perhaps the power, assumed by courts of equity, of dispensing with the literal performance of contracts is to be regretted. In the case alluded to before Lord Kenyon, it was held, that according to the conditions or covenant and the pleadings thereupon, the seller of an estate was bound to be prepared to produce his title deeds at a particular day, and to prove such readiness and that he did produce them. Berry v. Young, 2 Esp. Cas. 641. So in an action of covenant to build a certain mill in a certain place and by a certain time, and an averment accordingly, it was held that the declaration was not supported by proof, that the mill was erected after the time by the consent and agreement of the defendant. The contract must be proved as laid ; otherwise the defendant has no notice of. what he is called upon to answer. Philips v. Rose, 8 John. R. 392. Little v. Holland, 3 T. R. 590. The doctrine is virtually held, in a case decided in this state. A bond was given, conditioned for the performance of certain matters, and afterwards an agreement in writing was entered into between the parties, enlarging the time of performance. It was held, that an action could not be maintained on the bond for the penalty, but that the plaintiff must seek his remedy on the agreement enlarging the time of the performance. It is a decision that arises out of the doctrine that if strict performance be waived, the plaintiff must aver accordingly, so that the proof may correspond with the averments. Ford v. Campfield, 6 Halsted, 327. In the case of Wild v. Fort, 4 Taunt. R. 334, the doctrine is held, 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 deposite and rescind his contract.

It is hardly necessary to multiply authorities. It may be laid down as the settled rule, that where time enters into the performance of a condition precedent, the plaintiffs must aver accordingly, unless strict performance is waived or otherwise discharged by the defendant. In case a discharge of the strict performance be relied upon, as a waiver by the defendant, it must be pleaded. The rule must apply — I can perceive no difference in the principle — to an hour as well as to a day. I do not allude to the question of proof, as to how far a reasonable allowance may be made on account of the difference to be expected in. the clocks and watches of different persons. A contract, to be performed at a given hour, must necessarily be governed by the same principles as when to be performed on a given day; the same rules of pleading and of evidence must apply to the one case, as to the other. The averment of the plaintiffs is, that they did make and execute the deed of conveyance required, and that on the day and at the place specified in the conditions, at the hour of ten in the forenoon of that day, they were ready and offered to deliver the said deed to the defendant, according to the terms and conditions of the said sale. The proof is, that the deed was not executed and ready for delivery until more than two hours, and not actually tendered until some nine hours, after the time specified in the conditions and averred in the pleadings. It is not a mere question of evidence under the pleadings. The plaintiffs are bound to plead according to, and consistently with, the contract under which they sought to recover; and having so pleaded, they were bound to prove the averments in their declaration. Having failed, in my judgment, in the proof of tender averred, I am of opinion that for this as well as for the previous reasons, the verdict should be set aside and a new trial granted.

Hbvixjs, J.

dissenting. This was a special action on the case, brought by the plaintiffs, who were commissioners appointed by a decree of the Orphans’ Court of the county of Burlington, to sell the real estate of which Joseph C. Haines died seized. The action was brought for the specific difference between a first and second sale of a farm, made by the plaintiffs. The first sale was on the 2d of January 1841, when the defendant became the purchaser lor the sum of $117 per acre; and the second was on the 1st of July of the same year, when the premises were sold to a different purchaser at $99 per acre. The plaintiffs claim the difference between these sales, and the costs of the second sale.

The declaration contains two counts. The first sets forth, with particularity, the proceedings in the Orphans’ Court, from which the plaintiffs derive their authority to sell, the report of sales, the decree of confirmation, order to make deeds, &c.; also, the covenant or agreement of the defendant to pay and secure the purchase money, at the time and place therein specified; and if he failed so to do, to pay the deficiency and costs of a second sale; with an averment, that the plaintiffs were at the place at the time specified, and ready to deliver and actually tendered the deed to the defendant, but that he refused to accept the same and comply with this contract.

The second count is substantially like the first, merely omitting to set forth the preliminary proceedings in the Orphans’ Court. Issue was joined on the plea of non-assumpsit, and a trial had before the Gloucester Circuit in March 1843, which resulted in a verdict for the plaintiffs for $2653.83.

Several reasons are urged, in support of the motion to set aside this verdict.

The first is, that the plaintiffs had no legal right, or authority to sell the land in question; and consequently could make no legal title for the same; and that the defendant was not legally bound to take the title tendered. It is insisted that the sale was void, or at all events voidable,

1st. Because the statute did not authorize the Orphans’ Court, to decree a sale of the lands; or if it did,

2nd. That the proceedings in that court were irregular and defective, ánd for that reason the sale is voidable.

The first act of the legislature, which invested the Orphans’ Court with the power of decreeing a partition of lands, was passed on the 16th day of December 1784, but gave to that court no power to decree a sale, in case no partition could be made. On the 11th of November 1789, another act was passed for the partition of lands held by coparceners, joint tenants, and tenants in common ; which recited the delay, expense and oppression of writs of partition, and gave to a justice of the Supreme Court, and the judges of the Common Pleas, authority to appoint commissioners to make partition. But this act did not vest either the justice or judges with the power of decreeing, or the commissioners with the power of making, a sale, where the lands' could not be divided without prejudice. On the 7th of February 1816, the legislature passed another act entitled “ An Act supplementary” to both the Acts of 1784 and 1789; which provides that, upon application for partition of lands under either of the two last mentioned acts, if the commissioners shall be of opinion, that the land cannot be divided without prejudice to the owners, then either of the courts, to which application shall be so made, may order the commissioners to sell, &c.” On the 13th of June 1820, another Act was passed, entitled “ An Act to ascertain the power and authority of the Ordinary and his surrogates, to regulate the jurisdiction of the Prerogative court, and to establish an Orphans’ Court in the several counties of this state.” This act was designed to regulate the practice in the Orphans’ Court; and it embraced most if not all antecedent enactments on that subject, which were intended to be continued in force; and it repealed several other acts then in force, and among them the act of 1784. In the 19th section of this Act of 1820 Rev. L. 782, Elm. Dig. 384, it is provided that, “ when commissioners, appointed under that act to divide real estate, shall think if cannot be done without prejudice to.the owners, they may proceed according to the directions of the act, entitled, ‘ An act for the more easy partition of lands held by coparceners, joint tenants and tenants in common,’ and by an act entitled An Act to ascertain the power and authority of the Ordinary and his surrogates to regulate the jurisdiction of the Prerogative court and to establish an Orphans’ Court in the several counties of the state ’ passed the 7th of February 1816.” Now, the acts referred to in the 19th section of the act of 1820, were not passed on the 7th of February 1816, but one was passed in 1784, and the other in 1789. The act of 1816 is an act “supplementary” to those referred to by their title, in the 19th section. It is manifest therefore, that the legislature intended to refer to the act of 1816,. which they have done by its date, and not to the acts of 1784 and 1789 ; but in doing so, have misrecited it, by omitting the words “an act supplementary to the act entitled.” The repeal of the act of 1784 will not affect the question for the provisions of that act touching the division of lands, are incorporated in, and re-enacted by, the act of 1820. The question then is, “are the provisions of the 19th section of the act of 1820 nugatory, on account of this misrecital ? I think not. The legislature most clearly intended to provide for a sale of lands of a decedent, where a partition could not be made without prejudice to the owners. Such a power had existed in the Orphans’ Court, and been exercised by it from 1816; and whilst they were legislating upon the general powers of that court, they re-enacted the same provision. But it is insisted, that for this misrecital, the plaintiffs, had no legal authority to make a sale of the lands in question, or to make title therefor. That their sale was null and void, and the defendant under no legal obligations to take the deed tendered to him. In this the defendant is wrong. A mistake in the title of a statute may be corrected,- if the identity of the statute can be ascertained. Dwar on Stat. 653, 654, The identity of the statute, here referred to, is ascertained, as well from its subject matter, as from the time of its passage. And such construction ought to be put upon a statute, under consideration, as will prevent, if possible, its being defeated ; 15th John. R. 358. Unless this statute is construed to refer to the supplementary act of 1816, its clear object and design must be defeated. The intention of the makers must be had in view, in the construction of statutes; and when it can be discovered, it should be followed with reason and discretion, Bac. Abridg. tit. Stat.; 3 Cow. 89, though it may be contrary to the letter of the statute. “ That such intention is the proper method of inquiry,” say Chief Justice Thompson in 15 John R. 380, H is too well settled to admit of dispute.” Under this act of 1820, the Orphans’ Courts of this state have, since its passage, exercised the power of decreeing sales of lands. Such has been understood to be the law, and Chief Justice Marshall observes, that “ in construing statutes, on which land titles depend, infinite mischief would ensue, should a new rule prevail, from that which has long been established.” 5 Cranch 32. It would be impossible to estimate the extent of the evil and injustice consequent upon an adjudication by this court, that all the titles in New Jersey, which, for the last quarter of a century, have been derived through decrees of sale of these courts, on application jfor partition, were null and void. My opinion is, that the order of sale, made by the Orphans’ Court of Burlington in this case, is not void, and that the verdict, for that cause, should not be set aside.

But it is further urged, that if the decree of sale is not absolutely void, it is nevertheless voidable, as the proceedings before that court were irregular and defective; and that the defendant was not bound to accept a voidable title, and pay his money. The point of this objection is, that, in the order to divide the lands in question, the court omitted to specify the number of shares, into which they were to be divided, and the proportions of the respective tenants in common. The 12th sec. of the act of 1820 gives to the Orphans’ Court the power “ to order and direct a division of the real estate of an intestate, to be made in such shares and proportions among the heirs, as they may be entitled to under the laws of this state, directing the descent of real estate.” This is the only direction given by the statute. The petition, for the appointment of commissioners to divide, sets forth that Joseph C. Haines died seized of the lands in question, leaving a widow, and four children, naming them, who are his only heirs at law; and prays that partition be made between the said heirs in such shares and proportions, as by the laws of this state they are entitled to. The order recites, that the matters in the petition appear to be true, and then proceeds to appoint the plaintiffs commissioners to make division of the lands, between the said heirs, naming them, by metes and bounds, to be held in severalty in such shares and proportions, as they are respectively entitled to in the manner prescribed by law. "There is no such irregularity or defect here, as will vitiate this order for partition. Both the petition and order show, that the owners of the lands were the four children of the intestate, and his only heirs at law; and the statute of descent assigns them equal estates, in equal shares in said lands. Had partition been made between them under that order, neither could have successfully urged this objection, on a motion to set aside the partition. The statute; prescribes no form in which the order shall be drawn; if it is in substantial compliance with the act, it is sufficient. Here, the order is not only in conformity with the substance of the law, but with the precedents found in the books. There is no uncertainty upon the face of the proceedings, either as to the persons entitled, or the shares and proportions, to which they are by law entitled. Neither the order of partition, nor of sale, nor the sale itself, was voidable for this cause; and therefore the plaintiffs were not offering the defendant a void or voidable title, and the verdict ought not for that reason to be set aside.

The next ground urged in support of this motion is, that the order is to divide a reversionary interest, and not an estate in possession. The lands were subject to or under a lease for three years, which had not yet expired, when the order of sale was made, or when the sale took place. And the counsel contend, that under the authority of Stevens v. Enders, 1 Green 271, the court had no jurisdiction to order partition of such estate. The case cited has no application to the one before us. There the party, applying for partition, was owner of three-fourths of the premises in fee, and M. Stevens of one-fourth for life, with remainder to her children in fee. The order of partition, in that case, was set aside, on the ground that tenants in remainder could not be parties to a writ of partition at common law; and that the act of the legislature applied only to such estates as were subject to partition at common law, or under the 31 and 32 of Hen. 8. In this case, the owners are not seized of an estate in remainder, but of a present estate in fee simple in possession; for the estate of the tenant and the heirs at law, is but one estate, and the possession of the tenant, the possession of the landlords.

It is further objected, that the plaintiffs did not tender to the defendant a deed for the lands, at the time and place mentioned in the conditions of sale; and that the defendant was therefore absolved from his contract, and not bound to accept it at any other time; and for that cause it is urged that this verdict should be set aside.

One of the conditions of the sale, at which the defendant was purchaser, is “ That the deeds, for the respective tracts of land sold at this vendue, will be executed and ready for delivery to the respective purchasers, on the 20th day of March at 10 A. M. of that day, at the house of Charles Bryan, inn-keeper in Mount Holly; and in case any of said purchasers shall neglect to receive his deed, at the said time and place, and pay the purchase money and secure the same as aforesaid, the property will be advertised and sold again; and if it produce a less sum than the former bid, and interest and expenses, the purchaser will be held liable for the difference.”

The evidence touching this part of the case and applicable to the objection just mentioned, as it appears upon the case presented us, is, That on the 20th of March, at early candle light in the evening, at the house of C. Bryan, one of the plaintiffs tendered to the defendant a deed for the lands he had purchased, and demanded payment according to the condition of his purchase. The defendant took the deed and asked if it was a warranty deed; and was told that it was such a deed as commissioners usually give. He then handed it back, or laid it on the table, saying he would not take it, unless it was a warranty deed. At the same time, a deed of release from Mary L. Haines, for her dower right, was tendered to him.” It is not denied, but that such deeds, drawn in proper form and conveying a title to the lands purchased by the defendant, were tendered to him ; but it is said they were not tendered at the time specified in the conditions. The case shows that the defendant arrived at Bryan’s about a quarter before ten o’clock, on the morning of the 20th of March, and remained there about an hour; and when he left, he requested the landlord to notice the time of his departure. When he arrived at Bryan’s, he announced that he had come to fulfil his contract and take a deed, as he had before done to the persons, who came with him. When he left Bryan’s, which was about a quarter before 11 o’clock, he went to Bristol, in Pennsylvania; and returned again in the evening, and stopped at Bryan’s, where he found the plaintiffs, and where the deeds were tendered to him. It was also proved by a witness, that he saw the defendant, when he left home in the morning, put a roll of bank bills in his pocket book, saying at the time, that he was going to Mount Holly to receive the deed for the farm he had purchased. It was further proved, that all the plaintiffs were at the place mentioned in the conditions of sale, about 12 o’clock on the 20th of March, and then and there executed and acknowledged the deed, and that the release of dower was at the same time signed and acknowledged, and ready for delivery. That one of the plaintiffs resided in Mount Holly, and within a short distance of Bryan’s hotel. These are all the material facts proved, necessary to be noticed in order to a clear understanding of the questions raised upon them ; and from these it is contended, that the plaintiffs did not make the tender at the time they were bound to make it by the terms of their contract, or the time they averred in their declaration they had made it; and that no subsequent tender by the plaintiffs, was such a performance on their part, as can enable them to maintain their action.

The covenants between the parties, or rather the agreements between them, are mutual and dependent; and neither party can maintain his action against the other for his default, without proving a performance, or an offer to perform his own part of the contract, or at least alleging and proving some lawful and valid excuse for not doing so. 2 John. R. 207; 9, Ib. 209; 2 Green, 446. Here the plaintiffs aver, that they were ready and willing to perform their part - of the agreement, and actually tendered to the defendant a deed for the lands, according to their contract, but that he refused to accept the same and pay the money. To support this averment, they proved, that they were ready to deliver the deed at the place where it was to be delivered, about mid-day of the day when it was to be delivered; and that they remained there and made the tender on the same day and at the earliest practicable moment, that they could do so, after the deed was prepared and executed. In this proof I think the plaintiffs have maintained their averment, and shown their readiness and their offer to perform, according to the true spirit and meaning of their bai’gain. It is true that the conditions of sale specified ten o’clock, as the time when the deed was to be prepared and ready for delivery ; but this could not be understood by the parties as the only moment of that day, in which they could legally perform their own part, or claim from the other the performance of his part. It is to be esteemed an hour fixed and agreed upon, for the greater safety and convenience of the parties, and to secure their personal attendance with the least loss of time; to enable the one to prepare the conveyance and examine the securities, and the other to take counsel, if necessary, as to the form and substance of the deed, and the validity of the title; and that sufficient time might be allowed, for all these matters to be performed with caution and due regard to the interest of the parties, during the day. Such is the fair and reasonable construction of the contract, and it would be a libel upon the law, to say, that the plaintiffs could make the delivery of the deed, or the tender of it,-at that precise hour only ; and for their failure to do so, that they lost all legal right and benefit from their eon-tract. Suppose they had appeared at the hour of ten, with their deed ready for delivery, and the defendant had not arrived till some minutes after, w'ould they have been legally justified in withholding the conveyance on his tender of the money ? Or, if he had been punctual in his attendance, but found the deed defective in form, would he have been justified in rescinding the contract, and refusing to wait till the same could be corrected ? Such is not the law, nor the reason, nor justice of the case ; and no ease can be found to sustain so strict a construction. Time may, and sometimes does, enter into the essence of a contract; but the evidence does not show, that the particular hour was at all essential to the substance of this contract. The plaintiffs were acting in a public and official capacity, having no personal interest in the contract, and the defendant had no right to infer from their delay in appearing at the appointed hour, that they intended to evade their agreement; but other facts proved tend strongly to fix such a design on the defendant himself. I am of opinion, that the plaintiffs proved their averment of performance, substantially as contained in their declaration, and according to the true spirit and meaning of their contract; and this makes it unnecessary to consider another answer, which they have given to this objection, to wit, that a letter written by the defendant on the 16th of January, 1841, had absolved the plaintiffs altogether from the necessity of tendering him a deed.

Another ground taken by the defendant, in support of his motion is, that the conditions of the second sale differed from those of the first. This must have been necessarily so, in part; for a second sale could not legally take place, until the time mentioned for the first payment to be made, according to the terms of the first sale, had transpired.

It is admitted that the vendors on a second sale, where the purchaser at the first has neglected to comply with the terms, and is legally responsible for the difference, have no right to impose new, extraordinary and oppressive conditions, such as will prevent fair and reasonable competition, or prevent the property from bringing a fair and reasonable price; but I know of no principle of law, which will bind them to the precise terms of the former sale. They have a right so to frame their conditions, as will be equally beneficial to themselves. .And such I apprehend was the case in this instance. Upon the first sale, the purchaser had two months and twenty days, to make his first payment of one-third of the purchase money» By the second sale he had three months and twenty-five days, to make it. By the terms of the first sale, the second payment was to be made on the 20th of March 1843, with interest from March 1841, and the purchaser to be entitled to the rents from the latter year. By the terms of the second sale, the second payment was to be made on the 25th of March 1843, with interest from March 1842, and the purchaser to be entitled to one years rent only. The last payment according to the terms of both sales was to be made at the same time, with interest from 1841, according to the first, and from 1842 according to the second sale. It will be seen from this that 'the terms of the first sale were more beneficial to the estate represented by the plaintiffs, than those of the second sale; because, if the defendant had complied with his purchase, the vendors would have received the one-third of the purchase money in March 1841, and the interest on the balance from that time till paid ; which would be equivalent to the interest on the whole purchase money, amounting to $17,175.60, or an annual interest of $1030.50, whilst the annual rent was only $600. It follows then, that the terms of the second sale, though nearly assimilated to the first, were more beneficial and less onerous'to the purchaser, The defendant, therefore, has neither a legal nor equitable ground to complain, that injustice was done him by the terms of the second sale ; nor has he any legal right, for that cause, to claim, that the verdict should be set aside.

It is also objected, that there was no lawful evidence before the jury, of the precise number of acres in the farm. The petition for division, and the order appointing commissioners, described the tract as containing 150 acres more or less. The commissioners, acting as the agents or officers of the court and under their official oath, reported that it contained 146xVv acres, which report was confirmed by the court, without exception, and an order made that the deeds should be made out and given to the purchaser. I do not mean to say, that those proceedings in the Orphans’ Court are conclusive evidence of the quantity of land sold; but I apprehend they were prima facie evidence of the quantity, and if the defendant alleged a mistake, he might perhaps have required further proof. But this does not seem to have been a controverted matter, at the trial; and unless it is made to appear, in some way, that an error was committed by the jury, and injustice done to the defendant by the verdict, in this respect, we are not warranted in interfering with it and setting it aside. It has not been pretended on the argument, that the tract contains more or less acres, than the jury have estimated it at; and to send the cause back for another trial, upon this ground, would be oppressive to both parties, and in no wise promote the ends of justice. -

The last exception, taken to the trial and verdict, is the Judge’s charge. Upon-examining that, although I am not prepared to sanction all the learned Judge said to the jury, and especially the remark, “ That as the defendant had not proved that he tendered the money, it was not necessary for the plaintiffs to prove that they tendered the deed,” yet, as the plaintiffs did prove an actual tender of the deed, and as the verdict is not, in my opinion, either against law or evidence or the weight of evidence, and as I can find no misruling of the court in the progress of the trial, I think the verdict ought to stand, and the rule ought to be discharged.

Verdict set aside and a new trial ordered.

Whitehead, J. and Randolph, J. did not hear the argument and expressed no opinion.

Cited in Shinn v. Haines, 1 Zab. 342; Stryker v. Vanderbilt, 1 Dutch. 505; Long v. Hartwell, 5 Vr. 128; Mut. Ben. Life Ins. Co. v. Hillyard, 8 Vr. 484.  