
    Galletly v. The Board of Justices of Owen County.
    In an action on a title-bond conditioned to make a deed for real estate on payment of the purchase-money, the declaration averred a payment of the money and a failure to make the deed. Plea, that, before the commencement of the suit, the defendant had lenderei) the deed which was refused; that lie had always been ready, and was still ready, &c. jHeld, on demurrer, that the plea was good; it not appearing but that the payment was made on the day the deed was tendered.
    ERROR to the Ornen Circuit Court.
    
      Tuesday, May 5.
    
      Kinney, for the plaintiff.
    
      Whitcomb, for the defendants.
   Scott, J.

Samuel Fain, as county agent, gave his bond to make Galletly a deed for a lot in the town of Spencer, on the payment of the purchase-money; with a proviso, that no deed was to be made prior to the 17th of October, 1822. At the May term, 1828, Galletly brought suit on the bond, and assigned as a breach that he had fully paid the price of the lot, yet the said agent, though often requested, had not made the deed, ése. The defendants pleaded a tender of a deed before the commencement of the suit, to wit, on the 16th of May, 1827, and a refusal by the plaintiff to accept the same, and that since that time they have been always ready and are still ready, ése. Demurrer to the plea, and joinder, and judgment for the defendants. The record shows no failure on the part of the defendants. No time is mentioned in the declaration when the alleged payment was made. For aught that appears in the record, it might have been on the same day on which the deed was tendered. The demurrer was correctly overruled .

Per Curiam.—The

judgment is affirmed with costs. 
      
       The plaintiff, in the case in the text, could not recover, unless he had demanded a deed before the commencement of the suit. Vide Sheets v. Andrews, Nov. term, 1829, post.
     