
    
      Thomas J. Polk v. The Executors of Thomas Sumter.
    
    In an action of assumpsit to recover the price of land, sold under an agreement that the defendant would pay $500 for the same, on the receipt of good and sufficient titles from the plaintiff, the Court held that the tender of the plaintiff’s deed to the defendant, without d renunciation of dower, was not a performance of the condition precedent, which was necessary to give a right of action for the purchase money, and, therefore, sustained the non-suit which had been ordered on the circuit.
    A claim for dower in land, bargained to be sold, is such an incumbrance or invalidity of title, that the purchaser, who has stipulated to pay the purchase money on the receipt of good and sufficient titles, cannot be compelled to take the land, subject to that claim. »
    
      Before Mr. Justice Wardlaw, at Sumter, Extra Court. July, 1847.
    This was an action of assumpsit, to recover the price of land sold.
    The plaintiff showed an agreement, (see copy,) dated 22d January, 1839, and signed by Thomas Sumter, saying, “I agree to purchase of Capt. C. B. Polk, one hundred acres of land, 'belonging to Capt. Thomas Polk, in, &c. and to pay him for the same $500, on or before the 1st December, 1839, on the receipt of good and sufficient titles to the same.”— Further, the plaintiff produced a paper purporting to be a deed, with two subscribing witnesses, for the land described in the agreement, from Thomas Polk to Thomas Sumter, dated 20th May, 1839, to which is annexed a plat of the land, certified, 28th January, 1839, by John Ballard, deputy surveyor. The certificate says that the plat is a representation of 100 acres, sold by C. B. Polk, agent for Thomas J. Polk, to Col. Thos. Sumter. This paper was not proved, further than that one witness testified to the handwriting of Thos. J. Polk.
    The renunciation of the dower of T. J. Polk’s wife in the land described, taken under dedimus protestatem, since the commencement of this suit, was annexed to this paper.
    A witness, examined by commission, testified that in September, 1839, he tendered the paper, as a deed, to Thomas Sumter; that Sumter examined it and handed it back, saying that he did not want the land, but making no objections to the paper. A non-suit was moved for, on three grounds.
    1. The action should have been in the name of C. B. Polk.
    2. The execution of the deed was not proved.
    3. The dower was not relinquished before the commencement of the suit.
    The motion was granted.
    
      Grounds of Appeal.
    
    The plaintiff moved to set aside the non-suit, on the following grounds :
    1. Because the action was well brought in the name of the plaintiff, upon the proof made that C. B. Polk was his agent. That the promise was to the plaintiff.
    2. Because it was not necessary for plaintiff to prove that the title was valid.
    3. Because the same title having been tendered to the testator, in his lifetime, to which he did not object, neither he nor his executors can object thereto.
    4. Because both these questions should have been submitted to the jury.
    J. M. DeSaussure, for the motion.
    J. S. G. Richardson, contra.
    
    The first ground taken for a non-suit, is that the action should have been by C. B. Polk. This question should be determined by the terms of the contract, and they are so plain as to require no comment. But it is said that those terms may be explained by evidence, dehors the contract, and that they have been so explained. — • Neither proposition is true. This is a contract which the fourth section of the statute of frauds requires to be put in writing; and the plaintiff, before he can recover, must shew a written agreement by which the defendants’ testator has bound himself to the plaintiff. — Sug. on Tend. 63; Pack-hurst v. Van OorHand, 1 Johns. Ch. 273; Goss v. Nugent, 5 B. and A. 58 ; Grant v. Naylor, 4 Cranch, 243. He has shown no such agreement, but, on the contrary, an agreement by which the testator bound himself to C. B. Polk. But if evidence dehors the contract were admissible, none has been given. It is supposed that the surveyor’s certificate to the plat accompanying the deed is evidence of the agency, but it is too clear for argument, that the plat was introduced for a different purpose, and is evidence only to show that a deed had been tendered, which properly described the land.
    The second ground is that the plaintiff should have proved that there were two attesting witnesses to the deed tendered; that the mere production of the instrument, and proof of the plaintiff’s signature, are no proof of the attestation. One of the essential requisites of a deed for the conveyance of land, is that there .should be two attesting witnesses.— Craig v. Pinson, Chev. 272. Like writing or printing on paper or parchment, or a seal, such attestation is essential; and proof of the plaintiff’s signature, though, prima facie, proof of the terms of the deed and of the seal, is not proof of the attestation. The deed purports to have been properly attested, but if the names of the witnesses were forged, or if there are no such persons in esse, then the deed was insufficient to convey (he land, for the attestation is not a matter which proof of the plaintiff’s signature and the delivery would estop him from contesting.
    The third ground is that dower was not renounced before the deed was tendered, or before the commencement of the suit. Defendants’ testator stipulated for “good and sufficient titles.” Is a deed, without the renunciation of dower, such titles ? The very question here made was decided in the case of Jones v. Gardner, 10 Johns, it. 266. In that case, which, like this, was an action by the vendor against the vendee, the defendant had stipulated for “ a good and sufficient deed in law, to vest him with the title.” The plaintiff there, as here, tendered a deed, but not acknowledged so as to bar his wife’s dower. It was held that this was not a compliance with the terms of the contract. But it is supposed that the case of Burden v. McElmoyle, Bail. Eq. 378, is in conflict with the case of Jones v. Gardner. If Burden v. McElmoyle had been a bill by the vendor, for the specific performance of a contract for the sale of land, this would have been true. But it will be seen that in that case there was no contract at all for the delivery of titles, and that it was the defendant, there, who was required to make the titles. That case, therefore, differs from Jones v. Gardner and the case now before the Court, in two important particulars : 1st, there was, there, no contract at all; and, 2dly, the defendant, there, was required to make the titles. For these reasons, he submitted that Burden v. McElmoyle is no authority in a case where the plaintiff seeks to compel the defendant to accept titles, and which, by contract, should be “ good and sufficient.”
   Frost, J.

delivered the opinion of the Court.

The motion will be decided on the third ground taken for a non-suit, that the dower of the plaintiff’s wife was not relinquished before the commencement of the suit.

The defendant having contracted to purchase a tract of land from the plaintiff, is charged, in this action, on his agreement to pay to the plaintiff the sum of five hundred dollars, on or before the 1st Dec. 1839, on the receipt of good and sufficient titles to the same.” Before the action the plaintiff tendered to the defendants’ testator a deed of conveyance, without a renunciation of his wife’s dower. This defect was supplied after the action was brought, and before the trial.

Whenever, by the terms of the contract, the performance of the defendant depends on some act to be done by the plaintiff, it is necessary for the plaintiff to aver the fulfilment of such condition precedent, or to shew some excuse for the non-performance. Thus, in decláring on a promise to pay a sum of money, in consideration that the plaintiff would execute a release, the declaration must aver that such release was executed or tendered and refused.—8 East, 437; 2 Saund. 108, note 3. The engagement of a purchaser to pay the price, on the delivery of good titles, is a condition precedent; and' the vendor cannot bring an action, without having executed the conveyance, or offered to do so.—Sugd. Tend. 180; Phillips v. Fielding, 2 H. Blac. 123, was an action on an agreement to pay the purchase money, at a certain time, “ on having a good title,” and it was held necessary that the vendor should aver that he had actually made a good title, or that it was tendered and refused.

If the deed which the plaintiff tendered, had been sufficient to convey a good title, he might maintain the action.— But it is objected that the deed was not sufficient, because it was not accompanied by a renunciation of dower.

Bven if the stipulation for “good and sufficient titles” imports no more than the delivery of the title deeds, yet it necessarily requires that the deeds must, in effect, be sufficient to transfer a good title. A purchaser does not acquire a good title unless he is assured of a perfect, indefeasible right to the exclusive possession and enjoyment of the land, during the continuance of the estate he has purchased. Such a title was certainly not tendered to the defendants by the deed of the plaintiff, when, at the time of the tender, the plaintiff’s wife had a claim to a freehold estate in one-third of the land granted, in case she survived her husband.

In Prescott v. Freeman, 11 Mass. Rep. 629, Chief Justice Parker defines an incumbrance to be “any interest or right in the land granted, to the diminution of the value of the land, but consistent with the passing of the fee of it, by the conveyances, as mortgages, &c.” He adds, “ such is also the claim of dower.” In Coventry’s treatise on Conveyancers’ Evidence, 26 Law Lib. p. 26, it is said to have been held by the Chancellor, in Powell v. Shiel, 1 Beatty’s Ch. Rep. 48, that the purchaser of an estate of inheritance, from a married man, cannot be compelled to complete his purchase, unless he has a fine from the wife, or such evidence of jointure or other contract, barring her dower, as will enable him, at any time,'to lay his hand on it, to repel any future claim of this right.

Jones v. Gardner, 10 J. R. 266, was an action for the purchase money of a farm, under an agreement by which the plaintiff was bound “ to give to the defendant a sufficient deed to vest in the defendant the title to the land.” The plaintiff tendered a deed to which his wife had not renounced her dower, in the manner prescribed by law. It was held that the deed was imperfect, and did not, in this respect, fulfil the contract. In the judgment of the Court it is affirmed that “the title meant the legal estate, in fee, free and clear of all valid claims, liens and incumbrances, whatsoever. It is the ownership of the land, without the rightful participation of any other person in it. If the wife had a contingent life estate, the defendant had not a clear and absolute title.”

The case of The Ex’ors of Burden v. McElmoyle, Bail. Eq. Rep. 375, does not conflict with these authorities. The defendant was decreed to execute good and sufficient titles to the plaintiff, of two lots of land. He tendered a deed, without a renunciation of his wife’s dower. A motion for an attachment against him, to compel him to obtain the renunciation of his wife’s dower, was dismissed, because the terms of the order did not require the wife’s dower to be renounced, and by “ good and sufficient titles,” expressed in the order, was meant only such as the husband was competent to make; and not such as, by force or persuasion, he could extort from his wife. That case is no authority as to the effect of the terms, when used in an agreement to sell. Whatever conditions the vendor may undertake, he must perform, before he can compel the purchaser to comply with tíre terms of sale. The vendor cannot discharge himself of performance, by averring that circumstances have rendered it impossible, or that he has performed as nearly as he could.

The result of the authorities is that a claim for dower in land bargained to be sold, is such an incumbrance or invalidity of title, that the purchaser, who has stipulated to pay the purchase money, on the receipt of good and sufficient titles, cannot be compelled to take the land, subject to that claim. The tender, therefore, of the plaintiff’s deed to the defendant, without a renunciation of dower, was not a performance of the condition precedent, which was necessary to give a right of action for the purchase money; and the non-suit was properly granted.

The refusal of the defendant to accept the deed, when it was tendered, and to pay the purchase money, cannot be construed into an agreement to discharge the plaintiff from the terms of his contract; and the execution of the renunciation, after suit brought, was immaterial, because it is necessary for the plaintiff to have a cause of action before he brings suit.

The motion is refused.

Evans, J. and Withers, J. concurred.

Wardlaw, J.

concurred in the result — holding the first ground taken in the motion for non-suit to be most material.

O’Neall, J. and Richardson, J.

dissented — holding that the true construction of the contract makes the plaintiff the payee; that it was not necessary to prove the execution of the deed tendered; and that a relinquishment of dower was not necessary to enable the plaintiff to maintain his action. It was produced at the trial. There was a relinquishment taken after suit brought, which was enough for this case, in any view.  