The opinion of the Court was delivered by
Weston C. J.The agreement entered into by the plaintiff, on the fifteenth of Eeb. 1835, with the defendants, to purchase of them certain land, upon the terms and conditions specified in the instrument by him signed, is binding upon him if sustained by a legal consideration. An agreement on the part of the defendants, to sell or convey the land, would be sufficient to give binding efficacy to the agreement of the plaintiff. And this is to be found in the receipts, upon which he bases his action. The first contains express words of agreement, to sell the land they were to have of Ether Shepley, described by reference to his bond. The second refers to the same land, by the name which had been given to it anti by which it was known, as a tract which had been purchased of them by the plaintiff These were signed by both the defendants. The third, which is signed by Spring alone, acknowledges the payment of a sum of money by the plaintiff, advanced by him to Chase and himself towards the same land, which they had agreed to sell on certain conditions. These *78conditions are to be found in the instrument signed by the plaintiff. Upon performance or upon an offer to perform by him the stipulations on his part, in our judgment he would have been entitled to an action at law against the defendants, or might have compelled specific performance, by bill in equity. It has been held, that an agreement to sell land, binds the party to execute a proper deed of conveyance. Smith v. Haynes, 9 Greenl. 129.
The sums, sought to be recovered in this action, having been paid in part fulfilment of a'valid agreement, cannot be reclaimed, unless that agreement has been rescinded by mutual consent, or the plaintiff has a right to rescind it at his election. And this he cannot do, so long as the defendants are in no fault. Rounds v. Baxter, 4 Greenl. 454; Hudson v. Swift et al., 20 Johns. 24.
It is insisted, that the defendants were in fault in not having given a deed, or a bond for a deed, upon the completion of the first payment, according to one of the conditions of the plaintiff’s agreement. But by the fair meaning, as well as the legal effect of that agreement, the plaintiff was at the same time to give satisfactory security for the two remaining payments. The plaintiff should have tendered this security, before he can charge the defendants as in fault upon this ground. It may be said, that if they gave bond with condition to convey, upon these payments being made at the times stipulated, retaining the land, they would have sufficient security in their- own hands, and nothing further was necessary. But this might not have been satisfactory. The land was valuable for its timber, upon which the owners were then operating, a part of which, as the same agreement shows, was for the benefit of the plaintiff. Hence the defendants might be well justified in insisting upon satisfactory security, which the plaintiff agreed affirmatively to give. Upon a just and legal construction, the deed or bond and the security were to be given concurrently. Neither could charge the other as in fault, without performance or a tender of performance. This has been repeatedly held to be the law, upon concurrent or dependent stipulations.
*79But it is further urged for the plaintiff, that he is excused from further performance, and has a right to rescind the contract, because the title was not in the defendants at the time, or was incumbered with a mortgage. But they had a bond, by the condition of which they were to have a title, and which provided for a removal of the incumbrance. This was held sufficient to sustain a similar agreement in the case of Smith v. Haynes, more especially as the plaintiff there, as well as here, was apprized of the actual state of the title. The defendants were to give a bond or a deed. This was all the plaintiff required, and the alternative was with them. If they had elected to give a bond, the title was acquired and the incumbrance removed before the time limited for the last payment. For ought appears, the defendants have been at all times ready to comply with their contract. Every thing was promptly fulfilled necessary to enable them to do so. The notes secured by mortgage were paid at maturity, and the lien upon the land thereupon discharged. And as late as March, 1836, the plaintiff claimed the benefit of the contract, and expressed his determination to make arrangements to meet the second payment. Upon the facts reported, the action cannot in our opinion be maintained.
Nonsuit confirmed.