The terms of the agreement, for the non-per» formance of which this action is brought, are principally to be found in the letter of the defendant, bearing date the twenty-seventh of January 1819, which is referred to, and makes a p^rt of this case. In that letter, the defendant proposes to pay eight hundred dollars by the first of April following, to pay off a mortgage, with which the premises were incumbered, and the residue of the purchase money, the amount of which is to be ascertained by a reference to other written evidence in the case, was to be paid in the succeeding month of May. And he adds, “ if you accept of the offer, you shall make me a warranty “ deed, free and clear of all incumbrances.” In another part of the letter he states, “ I shall want to move there by the first “ of April, and if I have the farm, I shall expect you to clear “ the house at that time ; if you do accept the offer which I “ make you now.”
The terms proposed in this letter were accepted by the plaintiff.
It cannot be understood to have been the true intent and meaning of the parties, that on the one hand, the defendant was to pay the eight hundred dollars, and to extinguish the mortgage, without receiving his deed, relying upon the agreement only of the plaintiff to execute it; or that, on the other, the plaintiff could be holden to make and deliver the deed and to part with the land, upon the personal security of the de» fendant for the payment of the eight hundred dollars, and the extinguishment of the mortgage. The respective stipulations of the parties, except the payment of the residue of the purchase money in May, must then be deemed to have been dependant or concurrent. Thorpe v. Thorpe, 1 Salk. 171. Goodison v. Nunn, 4 D. & E. 761. Glazebrook v. Woodrow, *268 D. & E. 366. Johnson v. Reed, 9 Mass. 78. In order to entitle himself to this action, it was therefore incumbent upon the plaintiff to aver and to prove a performance, or an offer to perform the conditions on his part. This it is insisted he has not done; and various objections are, upon this ground, urged against his recovery in this action. From the view we have taken of the case, it has become unnecessary to notice them all.
, One of the conditions imposed is, that the plaintiff should j convey by deed of warranty, free of incumbrances. It may I be urged that this condition is satisfied by a covenant in the \deed, that the premises were so; but we are of opinion that, / upon a fair construction of the terms used, the defendant pre- | scribed it as a condition, that they should be in fact free from ^ incumbrances. At the time that the plaintiff tendered his deed, it appears in the case, that the, wife of Nathaniel Coffin had an inchoate right of dower in the premises. If this was to be deemed an existing incumbrance, the plaintiff is not entitled to claim damages of the defendant, for the non-performance of the agreement on his part. And we are of opinion that it must be so considered.
In the case of Jones v. Gardner, 10 Johns. 266. which was upon an agreement for the sale of real estate, the plaintiff, upon certain specified conditions, was to give to the defendant “ a good and sufficient deed in law to vest him with the title of “ the said farm of land, with the appurtenances.” The defendant, not having fulfilled the stipulations on his part, was called upon to answer in damages for the non-performance. The plaintiff had executed and tendered a deed to the defendant, but his wife had not therein released her dower; and this was deemed- a sufficient objection to his recovery in that action. The title, say the Court in their opinion, which the plaintiff had stipulated should vest by his deed in the defendant, “ meant the “ legal estate in fee, free and clear of all valid claims, liens, “ and incumbrances whatsoever. It is the ownership of land, a the dominium, directum et absolulum, without any rightful par- “ ticipation by any other person in any part of it. If the plain- “ tiff’s wife had a contingent life estate in one third part of the “ farm, the defendant had not a clear and absolute title. If “ this claim of dower was not inconsistent with the title to be *27“ vested in the defendant, it would be difficult to maintain that “ any other life estate in the same in reversion or remainder, or “ any judgment or other lien thereon would be incompatible “with it; and the title might thus be embarrassed and weak- “ ened, until it had lost all its value and strength.”
This respectable authority goes the full length to establish the position, that an inchoate right of dower is an existing incumbrance ; and not a mere possibility or contingency, which is to be deemed an incumbrance only when it becomes consummate.
It is however insisted by the plaintiff’s counsel, that as it appears from the deposition of Joseph Hovey, which is referred to in the case reserved, that the defendant in the month of April 1819, agreed to accept the deed made by the plaintiff, and made no objection on the ground of incumbrances, he must be considered as having waived all objections of this sort. But it does not appear that he then had any knowledge of the existence of an inchoate right of dower on the part of Mrs. Coffin. He might not know that Coffin had a wife living; and if he did he might believe that Mrs. Coffin had released her right of dower in the deed from her husband to the plaintiff; it not appearing that he had any means of ascertaining the contents of this deed until after the fifteenth of the same month of April, when it was first received for registry. Certainly nothing short of the most express waiver, with a full knowledge of the existence of the incumbrance, could remove this objection; and it may be doubted whether even this, if done by parol, could have that effect; inasmuch as by the statute of frauds, the agreement for the sale of real estate, by the party to be charged, must be in writing. To suffer therefore the terms and legal effect, of a written agreement of this sort, to be changed or modified by any subsequent parol agreement between the parties, might be deemed a violation of the salutary provisions of that statute.
Being satisfied that the plaintiff stipulated to convey, free of incumbrances, and this stipulation not having been complied with, by reason of the inchoate right of dower on the part of Mrs. Coffin, the non-performance of the agreement on the part of the defendant, in the opinion of the Court, was thereby ex*28cused. It results therefore, that the verdict, which has been returned in favour of the plaintiff, must be set aside, and a new trial granted.