
    William Aiken versus David Sanford.
    If a bond be conditioned for a deed of land to be delivered in a reasonable time after payment of a sum of money by the obligee to the obligor, ninety days after the payment is not a reasonable time for a tender of the deed, although it be before action brought on the bond.
    But in such case, if the deed be seasonably tendered, the penalty of the bond will be saved, though the land be encumbered by a mortgage, if the grantor be seised and the deed duly executed, with proper covenants of warranty.
    On a hearing in equity, after the penalty had been adjudged forfeited, the defendant had leave to replead, on evidence of a tender within a reasonable time, which his counsel by mistake had not pleaded.
    Debt on bond in the penal sum of 2000 dollars, dated June 11, 1805. On oyer prayed by the defendant, the bond appeared to be on condition that if, on the plaintiff’s paying to the defendant the amount of two certain notes of hand of the same date with the bond, each for the sum of 700 dollars, with interest, the defendant should sell and convey to the plaintiff and his heirs and assigns, by a good and sufficient deed of warranty, one hundred acres of land, being part of lot No. 108, situate in Augusta, on the fifth mile west of Kennebeck river, bounded, beginning at the south-west corner of the lot, thence running by the westerly line to the north-west corner and thence extending eastwardly, keeping that breadth until the 10C acres were completed, and should procure his wife to release her right of dower in the same land, the bond was to be void.
    The defendant then pleaded in bar, that on the 27th of June, 1806, he made and executed the deed described in the condition oi the bond, and afterwards, and before the commencement of this action, viz. on the 9th of September, 1806, he tendered it to the plaintiff, who refused to receive it. But there was no averment or * admission that the plaintiff had ever paid [ * 495 ] the money due on his notes of hand.
    The plaintiff replied that on the 7th of June, 1806, he paid the notes to the defendant, who, on the same day, tendered him a deed of bargain and sale, with general warranty, by which the defendant’s wife released her dower, and which deed purported a conveyance of part of a lot No. 108, situate in Augusta, on the west side of Kennebeck river, and bounded beginning at the south-westerly corner of said lot, thence running westwardly about 364 rods to the northwesterly corner, then running on the northerly line of the lot about 44£ rods to a stake and stones, thence running south-south-west about 364 rods to a stake and stones in the southerly line of the lot, then west-north-west about 44J rods to the first bound, containing 100 acres, more or less, excepting all public masts thereon ; that he, the plaintiff, refused to accept the said deed, as a performance of the con dition of the bond; and that from the time of making the bond, at the time of making said tender, and until the 3d of September, 1806, the lot No. 108 was encumbered by a mortgage to the president and directors of the Union bank.
    The defendant demurred to the replication, and the plaintiff joined in demurrer.
    At the last October term in this county, B. Whitman, in support of the demurrer, contended that although by the pleadings it was confessed that the land had been previously pledged to the Union bank for the payment of a sum of money, this did not make the deed tendered insufficient within the condition of the bond. It would remain a duty incumbent on the defendant to relieve the land from this embarrassment, and if he neglected his duty, the plaintiff would have his remedy. But as before the action was brought, this encumbrance was removed, and an unexceptionable deed tendered, the plaintiff had no ground of complaint left. If, indeed, the * plaintiff had objections to the first deed tendered, he [*496 ] should have stated them, and furnished a form of one which he would have accepted. That deed, though not in expression precisely conformed to the description in the condition of the bond, was abundantly sufficient to pass the land, which, by a reference to the bond, was identified to be the same tract. As to the reservation of the masts for the government, this is a prerogative as old as the settlement of the country, and whether mentioned in contracts for the sale of land or not, is always understood to be so intended. That the tender was in reasonable time, appears from its being mane before the plaintiff thought proper to institute a suit on the bond.
    
      
      For the plaintiff it was said, that upon the defendant’s tendering an insufficient deed, the plaintiff’s right of action vested, and it was not for the defendant to avail himself of the plaintiff’s forbearance, to defeat him of his remedy. If the government had a paramount claim to all masts on the land, the defendant should have excepted them in the original contract. But the phrase “ public masts ” might mean those which the original proprietors of the township, or perhaps the town in its corporate capacity, had seen fit to reserve or claim.
   The action was continued nisi for advisement, and the opinion of the Court delivered the next week, at Plymouth, by

Parsons, C. J.

By the condition of the bond declared on in this action, the defendant was obliged to tender to the plaintiff the deed therein described, within a reasonable time after the notes were paid, in order to save the penalty. It appears from the plaintiffs replication, that the notes were paid on the 7th of June, 1806, and from the plea in bar that the defendant tendered the deed on the 9th of September following. But the plaintiff admits in his replication a tender of a deed on the same day when he paid the notes. [ * 497 ] If the deed thus tendered * was a deed agreeable to the condition of the bond, the defendant must have judgment. Or if it was not, yet if the tender, made by him on the 9th of September after, was an offer to perform the condition of the bond, according to its true intent, in this case also, the defendant must have judgment.

The deed described in the plaintiff’s replication differs in form, in the description of the acres, from the bounds recited in the condition. It is not mentioned to be part of lot No. 108, situate in the fifth mile west of Kennebeck river, but it may be part of any lot of that number on the west side of that river. It is bounded on two corners of the lot said to be distant about 364 rods; the corners will therefore be the boundaries, whatever may be their distance. It is to extend on the northerly line about 44£ rods. By this description the contents may be more or less than 100 acres. Further, in this deed are excepted any public masts that, may be on the land. But the land to be conveyed was 100 acres of land, part of lot No. 108 in Augusta, on the fifth mile west from Kennebeck river, without any exception of public masts. It certainly cannot appear from the description of the lands in the replication, that the tender was of such a deed as was required in the condition of the bond. Indeed it appears that the deed tendered was not a compliance with the condition of the bond. On this ground, therefore, the defendant must fail.

The deed, which he describes in his bar, was unquestionably such a deed as was intended to be given ; and the only question upon the sufficiency of the bar is, whether the deed was tendered in a reasonable time after the notes were paid. The notes were paid on the 7th of June, 1806, and the deed was not tendered until the 9th of September following, more than ninety days after. It is therefore very clear, that this deed was not tendered within a reasonable time.

* But it has been argued for the defendant, that a tender [ * 498 ] at any time before action brought is sufficient in law to save the bond.

We are all of opinion, that this position is not correct. It will make the construction of the condition depend on the plaintiff’s delay in seeking his remedy at law; and certainly he must have a good cause of action, before he can legally commence one. His delay, therefore, cannot give the defendant a further time to perform the condition, which is to be ascertained from the terms agreed on by the parties.

Whether this tender can or cannot avail the defendant upon the hearing in equity, it is not proper now to determine. It appears to us that the replication is good, and that the penalty of the bond is forfeited at law.

The cause stood further continued for a hearing of the parties m equity, which was had at the following March term, in Suffolk. It appeared from the evidence, that the money due by the notes was not paid to the defendant in person in Augusta, where he lives, but was paid to his attorney in Taunton, upon an execution issued upon a judgment rendered for damages for the non-payment of'the notes : — that twenty days after, the defendant made and executed a deed of conveyance agreeably to the condition of the bond, and caused it to be tendered to the plaintiff at Dartmouth, by the middle of July following, when it was refused; but no objection was made to the tender as not being in season. This the defendant said was a performance, and as it was not pleaded through the mistake of his counsel, he prayed that it might be considered in equity, as reducing the penalty to damages merely nominal.

The fact, however, being denied by the plaintiff, the Court were of opinion, that as their equity jurisdiction arose, after it appeared at law that the penalty was forfeited, * an allega- [ * 499 ] tian, which was denied, but which, if true, would show the penalty not forfeited, ought regularly to be tried by the county, if such trial could be had; and that the trial in this case might be had by granting to the defendant leave to plead anew.

It was objected, that the deed thus tendered was not pursuant to the condition, because at the time of the tender, the land was encumbered by a mortgage, although it was paid off before action brought. .

Bidwell and TiUinghast, for the plaintiff.

By the Court. The validity of this objection depends on the condition, which required a conveyance of the land by a good and sufficient deed of warranty. The import of these words is confined to the form of the deed, and its execution, and not to the title If the deed was of a proper form, and regularly executed, and the grantor was seised, so that the land was conveyed by it, the condition was in this case performed.

But the Court observed, that they did not mean to determine that in no case these words should be considered as applying to the title. If the money was to be paid on receiving the deed, it might be a reasonable construction, that a good and sufficient title should be conveyed; otherwise the purchaser might part with his money, not merely for the land, but for a lawsuit also. In the present case, however, the money was to be first paid, and the plaintiff might as well sue on the covenants in his deed, as on his bond. There was, therefore, no reason for giving a construction to the words not naturally implied by them.

The defendant had leave to plead anew, on paying the plaintiff his costs. 
      
      
         If the grantor had previously conveyed the lands in mortgage, they could not pass by the second deed, but only the right in equity of redemption, and therefore the executing of the second deed was not a compliance with the condition of his bond, as it did not operate as a conveyance of the lands.
      
     