Eckford v. Halbert ( 1855 )

Fisher, J.,

delivered the opinion of the court.

This was a bill filed in the Yice Chancery Court at Fulton, to compel a specific performance of a contract for the sale of land.

The appellees, as appears by the allegations of the bill, sold to the appellants a tract of land, and executed their bond, with a covenant to mate a good and sufficient title to the vendees on the payment of the purchase-money\\The covenants to make title, and to pay the money, are concurrent; and neither party can insist on a performance of the contract, without an offer or tender of performance on his part.'^''

It does not appear by the bill, that the complainants have brought themselves within the operation of this rule, nor do they by their bill offer to perform their covenant. The complainants could not under the same state of facts recover at law, for the manifest reason that no breach of the contract is shown. The rule applies with equal force to proceedings in equity, to subject the land to the payment of the purchase-money. The question is, are the vendees in default in making payment ? The answer is, they are not, until a tender of performance by the other party.

Decree reversed, demurrer to bill sustained, leave to complain- > ants to amend their bill, and cause remanded.