The first and fifth grounds on which the motion for a nonsuit was asked may properly be resolved into one and considered together, as they both present the same identical question. If the plaintiff was bound to prove the tender of a deed, or an offer to give such a deed to the defendant as the contract called for, prior to bringing his action to recover the purchase money, then he failed to maintain the action, and the court in that event erred in refusing the nonsuit. In order to determine this question, it will be necessary to refer with care to the terms of the agreement between Varick, the trustee, and the defendant. By this contract Varick agreed to convey lot No. 3, in Walker's patent, on the condition of a full and *Page 112 faithful performance of all the covenants contained in the contract to be performed by the defendant. On the part of the defendant, the first covenant made by him was that he would pay the trustee, Mr. Varick, his heirs or assigns, the just and full sum of $396 in five equal annual payments, with interest annually on all sums unpaid. The contract bears date on the 3d day of January, 1839; consequently, the last annual payment became due on the 3d day of January, 1844. This covenant of the defendant is not made to depend on any contingency or act of the other party, or of any condition to be found in the contract. When then, let us inquire, did the defendant become entitled to the deed of said premises? The parties, by the plain language of the contract, have said that the defendant shall be entitled to such deed on the express condition that he shall pay the sum of $396, in five equal annual payments from the 3d day of January, 1839, with annual interest. It is not easy to mistake the meaning of parties when they use language so plain and emphatic in making their contracts.
The defendant, most clearly, was not entitled to a deed when the first, second, third or fourth installments became due, even if they had been punctually paid by him. So, also, in relation to the last installment, the time for its payment was fixed by the agreement; when the time arrived the money became due and payable from the defendant. No act was agreed to be performed on the part of the trustee or the plaintiff as assignee of the contract, in order to entitle him to the money due on the last payment. The premises were to be conveyed on the express condition of the payment of the whole amount of the purchase money.
No act whatever was agreed to be done by the trustee to entitle him to the money; or, in other words, the defendant agreed that he had no right to call for a conveyance except upon the express condition that he paid the whole amount of the purchase money. The case is clearly distinguishable from that of Grant v.Johnson (1 Selden, 247). In that case *Page 113 the contract did not require the defendant to pay the whole amount of the purchase money before obtaining a deed. He was entitled, by the terms of the agreement, to receive both the possession of the premises and a deed thereof before he could be called upon for the payment of the installment in controversy in that action. Not so in the case at bar; and in this particular the cases are manifestly and clearly different. The defendant in this action had no right to ask for a deed, except upon the express condition that he first paid the full amount of the purchase money. I have not been able to find any adjudged case conflicting with the plaintiff's right to recover, in this action, the amount due upon the contract.
The judgment should be affirmed.