
    Adam P. Ware v. William C. Lippincott et al.
    E., in his lifetime, sold a lot of land to W., received $100 cash on account, ;and agreed in writing that when the deed was delivered W. should give his note for “ $58 additional.” E. died, and his heirs refused to convey upon tender of W.’s note for $58, claiming interest thereon also. — Held, that interest flowed from the note, not from the contract to convey, and that as E. in his lifetime had neither obtained nor demanded the note, he could not have •required interest, and that his heirs stand in no better position.
    On appeal from a decree advised by Vice-Chancellor Bird, who filed the following conclusions:
    In December, 1865, Evans agreed to convey a tract of woodland to Ware for $158. Ware paid $100 of the purchase-money, and took a receipt therefor from Evans in these words:
    
      “Received, 12 mo., 13th, 1865, of Adam P. Ware, one hundred dollars, on-account of a lot of land sold him; the deed to be hereafter made to him, and. when delivered he is to give his note for $58 additional.”
    Ware was let into possession, and he cut and sold off all the-timber. He has remained in the possession ever since. Evans-died in 1879, at which time no deed had been delivered, nor had any tender been made of the note for the $58. In 1884 the-heirs-at-law of Evans commenced an action of ejectment against Ware for the recovery of the possession of this land. To restrain' this action, Ware filed this bill, and asks for the specific performance of the agreement to convey.
    The defendants insist, that Ware is not properly in court, because he did not make a tender of his note, nor of the amount due, before filing the bill. The complainant insists, that he was-not obliged to make any such tender. The complainant rests-this view upon the language of the receipt above quoted, which, says, “ deed to be hereafter delivered to him, and when delivered, he is to give his note for $58;” laying great stress-upon the' word “ when,” and urging that the use of that word imposed the' ■duty of tendering the deed upon the vendor or his heirs before the vendee could be considered in default, or required to take any steps in the cause before bringing his suit; notwithstanding he was, and had been for years, in full possession of the premises ■under the agreement, and had enjoyed all the profits.
    In the first place, I think the complainant is in error as to his equitable rights. As I understand the equitable principles which govern in such cases, it was the duty of the vendee to tender his note for the amount of principal and interest, or so much in cash, before filing his bill. See Waterm. Spec. Perf. § 438. The party asking the aid of a court of equity must not only aver his willingness to perform, but must show a demand on the defendant, and an offer or tender of performance before bringing his suit. Hartley v. James, 50 N. Y. 38, 42, 43. He who demands performance must tender performance. The obligations are mutual and concurrent. The complainant must have felt the force of the above consideration, for, before bringing his suit, he made tender of his note for $58. But, in my judgment, this ■tender of a note for only $58 does not satisfy the law after a lapse of twenty years, during all of which period the complainant ■has been in possession, and enjoyed the rents and profits.
    In the second place, I think the complainant is in error in his •effort to enforce the notion that the language of the receipt made it the duty of the vendor to tender the deed before the vendee ■could be in default. Independently of any acts of the parties showing what they regarded their respective rights and duties to ¡be, the word “ when ” creates or imposes no obligation upon the -one more than upon the Other. It only signifies, at the time of ■tire delivery, the note shall be given. But the conduct of the parties oftentimes indicates whether the contention of the one or the other may not be against equity. Of this we have the proof in this case. The evidence shows that the vendor prepared the deed for the premises, and wrote upon it, “ To be delivered when paid for;” and that the vendee drove a distance of about ten miles, on two or three occasions, to the house of the- vendor, for ■the express purpose of tendering his note and demanding the •deed; succeeded in learning that the deed was executed, and in -seeing it, but not in securing the possession of it, because the vendor was not at home on either of these occasions.
    When a sale is effected, the vendor holds the land for the benefit of the vendee, and must account to him for the rents and profits; and the vendee holds the purchase-money for the benefit of the vendor, and must account to him for the interest. Waterm. Spec. Perf. § 519; Haughwout v. Murphy, 7 C. E. Gr. 531, 544. “In a word, the estate and the purchase-money are things mutually exclusive, and neither party can, at the same time, be entitled to the enjoyment of both.” Fry Spec. Perf. *377.
    
    If I am right in these views, the bill should be dismissed, -with costs.
    
      Mr. John W. Wescott, for the appellant.
    
      Mr. Peter L. Voorhees, for the respondents.
   The opinion of the court was delivered by

Garrison, J.

In 1865 Adam P. Ware, the complainant, bought of Ezra Evans a lot of ground for $158. Ware paid $100 on account, -entered into possession by Evans’s consent, and received from him a written memorandum in these words:

“ Received 12th mo., 13th, 1865, of Adam P. Ware, one hundred dollars, on . account of a lot of land sold him; the deed to be hereafter made to him, and when delivered he is to give his note for fifty-eight dollars additional.
(Signed,) “Ezra Evans.”

This was in 1865. In 1880, nearly fifteen years later, Evans ■died, the deed not having been delivered nor the note demanded.* On the 4th day of March, 1882, Ware transmitted to the defendants, who are the heirs-at-law of Evans, his promissory note for $58. They not only refused to accept the note and deliver the deed, but, on the contrary, began an action of ejectment against Ware for the land. Ware thereupon filed this bill to enjoin the prosecution of the suit at law, as well as for the specific performance of the contract into which in his lifetime Evans had-entered.

There is in the case thus presented a single question, viz.: Had: the defendants a right to demand from Ware, before they would deliver to him his deed, anything more than his note for $58 ?' They certainly could not require of him more than Evans could have done, if alive. Evans, at any period prior to his death, would have been compelled to make a deed upon Ware’s tender to him of his note for $58. Evans could not have required interest on that sum. Interest was an incident not of the contract of sale but of the note. The note had no existence in fact because it had hot been obtained, and none in equity because it ■ had not been demanded. Evans in his lifetime had it in his power to fix a period when interest should begin to run, either-by obtaining or demanding the note from Ware. He died, not. having done either. His heirs now seek, in his name, to do what • he himself, if living, could not have done. This cannot be. The representative stream cannot rise higher than its ancestral source.

The defendants should have delivered to Ware his deed upon, his tender of a note of the amount mentioned in their ancestor’s-agreement to convey.

The decree of the court of chancery must be reversed, and a. decree made in accordance with these views.

Decree unanimously reversed.  