
    Dearth against Williamson and others, administrators of Welsh.
    Where by avlieles for the sale ofland the plaintiff* was to give a lawful deed of conveyance, and the defendant was to procure a commissioner’s deed to be made to the plaintiff for the same: the commissioner’s deed was made to the defendant who never conveyed (o the plaintiff: held, that the plaintiff could not recover the consideration money without making or offering to the defendant a deed of conveyance.
    By a lawful deed of conveyance in an agreement, may be fairly understood a-, deed conveying a lawful or a good title.
    When the plaintiff covenants to make a lawful title be is bound to produce his title to the de-, fendant, and offer himself < ready to execute a deed.
    In Error.
    ERROR to the Common Pleas of Mercer county, and a bill of exceptions.
    
      George Dearth the plaintiff, and the intestate Janies Welsh, on the 4th June, 1809, made an agreement in writing, “that “ the said George for, and in consideration of the sum of “ three dollars and seventy-five cents per acre, to be paid as “ herein after stated by the said James, has bargained and “ sold unto the said James, his heirs and assigns, a certain “ donation tract of land situated in Mercer county aforesaid, “ lying in the second district known by number 184, adjoining “said James’s lot, 1809, on the west side containing 250 “ acres, be the same more or less, which said George binds “ himself, his heirs, &c. to make a lawful deed of conveyance “ for at the expiration of four years from this date, — at which “ time said James binds himself, his heirs, &c. to pay or “ cause to be paid unto the said George, his heirs, &c. the “ full amount of the purchase money at the rate aforesaid,— “ if not paid as aforesaid, said James binds himself, his “ heirs, &c. to pay lawful interest from that date. The said “ James further agrees to procure the sheriff’s deed in the “ name and for the use of the said George, his heirs, &c.— “ which lot, 184 aforesaid, was sold by the commissioners of “ Mercer county aforesaid, to defray the county and road “ taxes up to the year 1806, inclusive; and which was bought “ in by the said James for the said George. Said James is “ to be at the expense of surveying and ascertaining the num- “ her of acres in said lot; and said Georgeñs to be at the ex- “ pense of deeding the same. Said James is to have imme- “ diate possession, and is to be at the expense of procuring “ the sheriff’s deed as aforesaid, and convey the same to the “ said George, the first safe opportunity.” < .
    
      This action was brought against the administrators of Welsh, for the recovery of 3 dollars and 78 cents per acre-. It appeared on the trial, that a sheriff’s deed of the kind usually called a commissioner’s deed, had been executed to . , , . ,, Welsh for this tract on the 14th September., 1808 : but there was no evidence of his knowing of the conveyance when he executed the articles. Welsh never procured or made any conveyance to the plaintiff of the title derived from the commissioners : nor did the plaintiff ever make, or offer to-make any conveyance to Welsh after the date of the articles. The land,-When it was sold for taxes, was-assésSed in the name of Randolph Dearth: to whom the plaintiff took outdetters’ of administration. The defendants alleged, that they weré not liable, because the plaintiff had not executed a deed, vesting a legal title in Welsh. On the other hand the plaintiff' contended, that his not making a deed was owing to the default of Welsh: who, by retaining the title -derived from the commissioners rendered it impossible for the plaintiff to make a legal title. The Court charged-the jury, that “some other inte- “ rest than that contained in the sheriff’s deed was to be con- “ veyed by the plaintiff, and that a conveyance tó this effect “ ought to have been made and tendered, or at least offered “ to have been made by him to the defendant, before in this “ suit he is entitled to recover.” To this opinion the plaintiff excepted, and the Court sealed a bill of exceptions.
    
      S. B. Foster and Campbell, for the plaintiff in error.
    What 'was the intent of the parties in the contract for the sale of this land ? No other outstanding title is spoken of than the-deed of the commissioners. The intestate' himself was the cause why the plaintiff did not tender a deed. If he who is to be benefited by a thing to be done by another is the cause why it is not performed, the other is discharged. 1 Pow. on Cont. 417. Welsh, having the deed from the commissioners is in as good a situation as if the deed had been to Dearth, and then a deed from Dearth to him. The defendants wish to keep the land and pay nothing.
    Ayres, contra.
    I agree, that if Welsh was the cause of the deed not being made, we cannot resist payment of the. money. At the end of four years Dearth was to convey and Welsh to pay for the land. It was an unimproved donation tract to which Dearth was to make title. . Welsh had pre-. viously bought it at commissioner’s sale; and in order to enable Dearth to make a good title, Welsh was to procure for. him a deed from the commissioners. The plaintiff was not by this prevented from making a deed as he had'stipulated. A lawful deed of conveyance from the plaintiff meant something more than a commissioner’s deed.
    
      Reply. We say no other title Was expected to be conveyed than that which was founded on the commissioner’s sale. It was impossible for Dearth to make a legal title, until he had title from the commissioners conveyed to him. It was. the business of the vendee to prepare a deed.
   Tilghman C. J.

(After stating the case.) If nothing else was intended by the articles of agreement, than that the plaintiff should re-convey to Welsh the title derived from the commissioners which Welsh was first to procure to be vested in him, then indeed there can be no objection to the plaintiff’s recovery in this suit, because Welsh has the title from the commissioners vested in him already, and it was impossible for the plaintiff to convey what* through Welsh’s default, he never had. The law is clear, that if a man by his own act, prevents me from doing what I covenanted to do in his favour, he thereby discharges me from the covenant. But this is not the meaning of the articles. The plaintiff was to make a lawful deed of Conveyance: that is, he was to convey a lawful title, for which he was to receive the full value of the land. It does not appear, that the plaintiff had any title whatever: but from his taking letters of administration on the estate of Randolph Dearth, in whose name the land was assessed when it was sold for taxes, it would seem as if he was endeavouring to derive some title under him. Sales for taxes have been seldom so conducted as to give a good title to the purchaser. It would, therefore, require clear expressions in the articles, of agreement, to induce the conclusion, that 3 dollars and 75 cents an acre was meant to be given for no more than the title under the sale for taxes. But the expressions are by no means clear to that purpose. On the contrary, a lawful deed of conveyance may be fairly understood a deed conveying a lawful or a good title.

But it has been urged by the plaintiff, that supposing this to be the construction of the articles, it was the business of the defendants to. prepare the deed, and tender it to the plaintiff for execution. If the-plaintiff had told the defendants, that he could shew a good title, which he was ready to convey, if they would have a deed prepared, we might then enter into the consideration, whether the plaintiff or defendants was bound to have the deed drawn. But the plaintiff having covenanted to make a lawful deed was at least bound to produce his title to the defendants, and offer himself ready to execute a deed. For without a sight of the papers it would not be possible for the defendants either to prepare a deed or form a judgment of the goodness of the title, which they had a right to be satisfied of before they paid the purchase money. • • ■

The Court of Common Pleas were not in an error, therefore, when they directed the jury, “ that some other interest “ than that derived from the commissioners was to- be con- “ veyed by the plaintiff: and that;a conveyance ought to “ have been made and tendered, or at least offered to-have <£ been made, before he could be entitled to recover in this “• suit.” I am of opinion, that the judgment should be affirmed.

Yeates J. was sick and absent.

Gibson J. concurred.

Judgment affirmed.  