
    Davis v. Van Wyck.
    
      (Supreme Court, General Term, Second Department.
    
    May 9, 1892.)
    1. Action on Contract—Breach—Tender.
    Defendant purchased certain land at foreclosure sale, and agreed to reconvey it to the mortgagor on payment of a specified sum and of certain debts due defendant. The mortgagor paid S900 under the agreement, and then died. His administrator offered to paya certain amount as the balance due, but, being unable to agree as to the amount due, defendant sold the property. Held, in an action by the administrator to recover for the breach, that defendant having by the sale put it out of his power to convey, a tender was not necessary on the part of plaintiff to support the action.
    3. Mortgages—Accounting.
    The transaction in question being in effect a mortgage, there should have been an accounting, crediting plaintiff with the $900, and charging him with the use and occupation of the premises by his intestate’s family.
    Appeal from circuit court, Orange county.
    Action by Frank P. Davis, administrator of John M. Davis, deceased, against Charles H. Van Wyck. From a judgment for defendant, plaintiff appeals.
    Reversed.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      8. S. Gowdey, for appellant. William, Vanamee, ( William I. Groo, of counsel,) for respondent.
   Barnard, P. J.

On the 14th of December, 1867, the defendant agreed to convey to John M. Davis certain premises in Sullivan county. The consideration is left quite uncertain, so far as it is expressed in the paper. The agreement signed by Van Vyck, defendant, is stated to be “for the price this day paid for the same, together with the amount due now from the estate of said William Davis, and also the amount he has this day agreed to pay the estate of William Davis, deceased, by an agreement with the administrator cf said estate.” The agreement also recites that defendant had purchased the land to secure his claims against William Davis, deceased, and that he was to be indemnified by the sale to plaintiff’s administrator against an agreement which defendant had made to guaranty an agreement of John M. Davis to the administrator of said William Davis. There was paid $900 to Van Wyck, defendant, by John M. Davis, on the 20th of January, 1871. John M. Davis had possession of the land from the date of the agreement, and died in 1873. In 1877 the widow and family of deceased, John M. Davis, left the property. In 1877 the administrator had an interview with the defendant. The parties differed as to the debt due. The administrator said it was $1,300, about, and Van Wyck claimed it was over $2,500. The administrator expressed a willingness to pay the $1,300. Van Wyck refused to take it, and in March, 1883, sold the property to one Case. There was no formal tender on either side, and the agreement continued, and the question is reduced to this: whether a sale of the premises, when neither party was in default, waived a specific strict tender before an action for breach could be commenced. The sale by Van Wyck put it out of his power to perform, and is of itself a breach. A tender is not necessary where a party puts it out of his power to comply. There was proof tending to show that the claim of Van Wyck was a mortgage only, and, as $900 had been paid on that, there should have been an accounting, and a balance arrived at, fixing debt, and use and occupation reduced by payment. It was not too late to receive the testimony of the witness Goudy. The judgment should therefore be reversed, and a new trial granted, costs to abide event. All concur.  