
    AARON FRIEDMAN, Plaintiff and Respondent, v. NICHOLAS DEWES, Defendant and Appellant.
    A person having an equitable interest or title to real estate is in a position to contract with another for the sale and conveyance of the same at a specified time and place, and if at the maturity of such contract he is able to procure a conveyance of the fee, and a good title of the property to his vendee, and offers to do the same, it would be a fulfillment of his contract. '
    A party to such contract, who has made a payment to another on account of the purchase, cannot rescind the contract and recover his payment on the ground that the person with whom he contracted was not the owner of the property and in no condition or with no ability to perform the same, when in fact .that person produces the owners of the same, who can convey and make title to the same, to the vendee, and offer at the specified time and place to execute and deliver a proper conveyance of the same in fee already prepared for the purpose.
    Before Monell and Spencer, JJ.
    
      Decided December 30, 1871.
    Appeal from a judgment.
    The action was to recover a payment made upon a contract of purchase of real estate, agreed to be sold and conveyed by the defendant to the plaintiff.
    The complaint alleged the making of the contract, the payment of the money, and that the defendant had riot delivered or offered to deliver a deed of the premises, although often requested by the plaintiff to do so.
    The answer denied every allegation except, the making the contract and payment of the money.
    The action was tried bv a referee.
    
      It appeared that at the time of the contract with the plaintiff the defendant was not the owner of the property, but he had a contract from the owner for the conveyance to him on the day named in his contract with the plaintiff. That fact seems to have been well known to the plaintiff. On the day the conveyance was to have been made the plaintiff went to the owners, and after some conversation respecting the payment of a further portion of the purchase money, the plaintiff refused to make the payment, alleging that the title was not good. The owners were present ready to execute and deliver to the plaintiff a deed, upon performance by him of the contract with the defendant. The referee found the following facts :—
    That the defendant did not own the premises at the time of the making of the contract and payment, nor was he the owner thereof on the 1st day of November, 1866. But that prior to the 24th day of October, 1866, he had entered- into a contract for the purchase of the premises from Jacob Bermann and John Schappert, who were the owners of same, whereby Bermann and. Schappert covenanted to deliver to the defendant, on or before the 1st day of November, 1866, a deed thereof.
    That on the 1st day of November, 1866, the plaintiff applied to ‘the agent of defendant for an extension of the time to complete his said purchase, and was by him taken to Bermann, who covenanted to grant said extension, provided a further sum were paid as greater security for the completion of the contract, which further sum the plaintiff agreed to pay to Bermann in the evening of the same day, at the place designated in said contracts respectively for the delivery of said deeds. That in pursuance of that understanding the plaintiff was present at or about the time for that purpose designated to make such further payment, and met Bermann and Schappert, who claimed the time was up, disavowed any contract agreement with the plaintiff, refused to grant any such extension, but did offer to execute a deed, already drawn and prepared for that purpose, conveying the premises to the plaintiff, upon receiving the moneys specified in said last mentioned agreement, to be paid them on the delivery of their deed thereof to the defendant. That the defendant did not attend personally at the time and place designated in the first mentioned agreement to deliver any deed for the premises to the plaintiff, nor did he make a tender, or cause to be tendered, any deed for the purpose of conveying the premises from himself to the plaintiff.
    The referee rendered judgment for the plaintiff for the amount of his payment and interest.
    The defendant excepted and appealed.
    
      Mr. J. E. Cary, for appellant.
    
      Mr. S. Hirsch, for respondent.
   By the Court,—Monell, J.

The theory of the referee’s decision seems to have been that, inasmuch as the defendant was not the owner of the property, either at the time of making or of the maturity of the contract, he was in no condition to perform, and therefore no demand of performance was necessary; and that upon those facts the plaintiff could rescind the contract, and recover his payment upon it.

Such theory, however, cannot be sustained-. The defendant, under his agreement of purchase, had an equitable title, and that was sufficient to authorize his contract of sale to the plaintiff; and, if at the maturity of his contract, he was able to procure a conveyance of the fee to his vendee, it would be a performance of his contract. ■ ■

It clearly appears in the case, and the referee has found the fact, that Bermann and Schappert, the owners of the property, and with whom the defendant had his contract, offered to execute a deed, then prepared, for the purpose of conveying the premises to the plaintiff, upon his complying with his contract with defendant. But the offer was refused, on the ground that the title was not good.

No proof was offered to show that the title was not good, nor other reason furnished, for the refusal to receive the deed. There was, therefore, no evidence of any default on the defendant’s part. The offer of Hermann to convey, in performance of the defendant’s contract with the plaintiff, was a substantial compliance on the defendant’s part. And as there was no demand made of him, and the other offer was refused, for, as appears, a groundless reason, the plaintiff was not in a condition to recover Ms payment.

For these reasons the judgment should be reversed, the order of reference vacated, and a new trial ordered, with costs to the appellant to abide the court.  