
    Gaar v. Lockridge.
    A contract to convey or cause it to be done, is the same as a contract to convey, by the obligor, unless it is stipulated that the title is to be made by a third party.
    
      A vendor’s estate in land, contracted to be sold, but not conveyed, is subject to the lien of a judgment obtained against the vendor after the contract of sale, for the amount of the purchase-money unpaid.
    But the vendee may pay the balance in satisfaction, as far as it will go, of the judgment, and no inadequacy of price being shown, the lien will be discharged; and where this can be done without loss to the vendee, the incumbrance is no defense to a promissory note for purchase-money.
    
      Semble, that the obligee of a title-bond, in possession, cannot resist the payment of a promissory note for purchase-money, on breach of the condition of the bond, unless he offer to surrender the bond, give possession, and account for rents and profits.
    APPEAL from the Hendricks Court of - Common Pleas.
    
      Wednesday, May 27.
   Gookins, J.

Garr, the appellant, brought this action against Lockridge, the appellee, upon a promissory note for 190 dollars, dated March 8, 1852, due April 1, 1853, payable to one Kennedy, and by him indorsed to the plaintiff.

The note stated that it was given for the balance of the purchase-money of lot No. 7, in block No. 27, in the town of Danville.

The defendant answered in two paragraphs. The first alleges that at the time of executing the note, Kennedy made to the defendant a title-bond, -with condition that, on payment of said note, he would convey said lot to the defendant by deed in fee, clear of all incumbrances; that he was ready on the first day of April, 1853, to accept the conveyance and pay the purchase-money, but the said Kennedy did not then, or at any time previous, convey or offer to convey said lot.

Note. — The judgment in this case was reversed by the Circuit Court; but after the decision in Langdon v. Applegate, 5 Ind. R. 327, that an appeal does not lie' from the Common Pleas to the Circuit Court, an appeal was taken to this Court. So much of the opinion of Hon. Stephen Major, the circuit judge, as touches the points discussed in the opinion of Judge GooMns, is appended.

“ The defendant contends that a judgment which was rendered in the Hendricks Circuit Court, in September, 1853, for 1,500 dollars, after the sale to Lockridge, is a lien on the lot, to the extent of the unpaid balance of the purchase-money. This objection is not sufficient to defeat the plaintiff’s recovery.

“Kennedy was under no obligation to tender a deed to Lockridge, to entitle him or Goar to a recovery on the note; and until Lockridge places himself in a position entitling him to a deed, he cannot be permitted to say that Kennedy cannot make or cause to be made to him, a deed to the lot free from incumbrance. To entitle Loclcridge to a deed, he must pay, or offer to pay, the amount of the noto, and upon doing so, and then demanding a deed, he might be able to set up the decree in favor of Sarah Kennedy in bar of a recovery on the note; but without such tender he could not plead such incumbrance.

“ The judgment is but a lien on the lot to the extent of the unpaid purchase-money ; and its application to the judgment of Sarah Kennedy, would, perhaps, discharge the lot of the judgment lien.

The fact that Kennedy conveyed the lot, and also the note, to Gam, makes no difference.”

The second paragraph is like the first, with the additional averments, that Kennedy did not offer to convey before or after the note became due, but at the time he assigned the note to the plaintiff, he conveyed the lot to him, who afterwards tendered a deed to the defendant, which he refused to receive, because the lot was encumbered by an estate for life in one Sarah Kennedy, and by a judgment rendered at the September term, 1853, of the Hendricks Circuit Court against the plaintiff’s assignor, which was replevied by the plaintiff.

The reply to the first paragraph of the answer, denies the contract to convey, as stated by the defendant, and says that Kennedy was to convey the lot, or cause it to be conveyed, on payment of the purchase-money, and' on the reasonable request of the defendant; and that because he did not pay said money, nor make such request, he did not offer to convey.

The reply to the second paragraph states the contract in the same manner, and avers that, before the commencement of the suit, he tendered to the defendant a conveyance of the lot; that there was no incumbrance on the lot at the date of the title-bond; denies that Sarah Kennedy has any life estate in the lot, and avers, that she had been divorced from her husband, the plaintiff’s assignor, and that 1,500 dollars had been decreed to her in lieu of dower in her husband’s property; that said Jesse Kennedy is still alive; and that the judgment is a lien upon other lands of said Kennedy, of the value of 10,000 dollars.

Upon these proceedings the cause was submitted to the Court. The plaintiff’s evidence consisted of the note; a deed from the plaintiff to the defendant, with full covenants, dated November 24,1853, for the lot, which the plaintiff proved was tendered to the defendant before the commencement of the suit. He also proved that he was worth 8,000 dollars, and that Kennedy was still alive.

The defendant gave in evidence a decree for divorce between Kennedy and his wife, which conformed to the statements in the pleadings. It appeared to have been replevied by the plaintiff on the 11th of October, 1853. He proved that Mrs. Kennedy was still living; and gave in evidence a title-bond, not corresponding with the allegations of either party, but agreeing with those of the plaintiff, except that, in addition to the description of it given in the reply, it contained a stipulation that, in the meantime, the defendant should have possession of the lot.

This being all the evidence, the Court found for the defendant, refused the plaintiff’s motion for a new trial, and gave judgment accordingly. No objections were taken to any of the pleadings or evidence, and we are now to consider whether the conclusion at which the Court arrived can be sustained.

At what time Kennedy conveyed the lot in question to Gaar does not appear. That he did so convey, is alleged by the defendant and admitted by the plaintiff. By that conveyance he put it out of his power to comply with the contract on his part, and Lockridge was not bound to accept a conveyance from Gaar. A contract to convey, or cause it to be done, is the same, in legal effect, as a contract to convey, by the obligor, unless it is stipulated that the title is to be made by a third party. Lockridge, however, did not object to the conveyance on that ground, but on the ground that the lot was encumbered. He has not shown any incumbrance existing at the date of the bond; and the question arises, what, as between these parties, is the effect of a decree, subsequently rendered, against Kennedy? In Simpson v. Niles, 1 Ind. R. 196, it was decided that a vendor’s estate in land contracted to be sold, but not conveyed or paid for, was subject to the lien of a judgment against the vendor. In that case, the judgment-creditor’s claim upon the land was enforced to the amount of that portion of the purchase-money which was unpaid . when the lien of the judgment attached.

C. C. Nave, for the appellant.

J. M. Gregg, for the appellee.

But another feature is presented by this case, which the parties seem to have overlooked; and that is, the defendant’s possession. He did not offer to surrender the bond, nor to give up the possession, nor to account for the rents and profits, if there were any. A party cannot keep the subject of his contract, and refuse to pay for it too. This is a well known rule of equity that has been frequently asserted by this Court. Barickman v. Kuykendall, 6 Blackf. 21.—Cain v. Guthrie, 8 Blackf. 409.—Osborn v. Dodd, id. 467.—Brumfield v. Palmer, 7 Blackf. 227.—Oldfield v. Stevenson, 1 Ind. R. 153. Since all distinctions between proceedings at law and in equity are abolished in this state, the fact that neither party offered to complete the purchase on the first day of April, 1853, is of no consequence, so long as neither has attempted to rescind; and as the defendant waived the objection, on which he might have relied, that he was entitled to a deed from Kennedy, he ought to have paid the purchase-money, if he could have done so without danger of loss.

The proof that the plaintiff was worth 8,000 dollars was probably intended to show that the defendant was not likely to suffer from the lien of the judgment — he having replevied it — but it was not shown what his property consisted of. It may have been stocks, money, or merchandise, and consequently not subject to the hen of the decree. But we think the defendant might have paid the balance of the price of the lot in discharge, so far, of the incumbrance; and, no inadequacy of price being shown, such payment would have discharged the lot from the lien of the decree. He could thus have made the payment without any danger of loss or injury to himself, and we think he was bound to do it; and, consequently, that the finding of the Court of Common Pleas, upon the evidence, was wrong.

Per Curiam.

The judgment is reversed, with costs. Cause remanded for a new trial.  