The appellant having á contract for the sale to him of several lots in Dunton Park, on June 28, 1906, entered into an agreement with the respondent by which he undertook, upon the payment of $1,895, with interest thereon at the rate of six per centum per annum, payable “ one hundred dollars at the time of the ensealing and delivery of this agreement * * * and twenty dollars each and every month in advance,” to deliver or cause to be delivered to her a deed conveying the fee of said lots, subject to two existing mortgages thereon which she agreed to assume. The- monthly payments included principal and interest, and the taxes and insurance were to be paid by the appellant. The respondent entered into possession of the lots under said agreement on July ninth following its execution. She paid the $100 when the contract-was executed, and commenced making the monthly payments on August fourth following. Each month thereafter she paid $20, down to and including the-month of January, 1908; On February 5, 1908, she was served with a summons and complaint in an action brought to. foreclose one of the mortgages upon the property, since which time she has not paid anything. She remained in possession of the property until September 28,. 1908, when the purchaser at the sale in foreclosure ejected her therefrom. She has recovered in this action a judgment for all of the money so paid by her to the appellant. The *59record does not disclose the theory upon which thé Municipal Court justice acted in rendering the judgment appealed from, and it is clearly apparent that it cannot be sustained.
By the terms of the agreement between the parties, $20 was to be paid each month in advance. This necessarily required such payments to be made on the first day of each month. The agreement is dated June 28, 1906; there had become due and payable under its provisions, on February 1,1908, twenty monthly payments of $20 each, amounting to $400. Concededly the plaintiff had made only eighteen payments amounting to $360. The contract provided that if default was made in the payment of the monthly installments for two months the rights of the plaintiff were thereby changed from those of a vendee in possession to those of a tenant by the month only. The plaintiff had suffered such default before the foreclosure papers were served upon her, and at that time had lost her right of action against her vendor for the repayment of the money she had paid upon the contract. But if she had not been in default at that time she was not justified in thereafter refusing to make the monthly payments, yet she continued her default for six months thereafter before the sale in the foreclosure action was made.
Counsel for the respondent seeks to sustain this judgment under] the familiar rule that where a. party to a contract has so disabled himself as to make performance impossible, his conduct is equivalent to a breach of the contract, although the time for performance has not arrived, and such disability excuses further performance by the other party who may treat it as an entire breach, and recover" accordingly. The difficulty with this contention lies in the fact that the record discloses no basis for the application of the rule. The commencement of a foreclosure action does not effect such result, for it does not disable a vendor to the extent of making performance by him impossible. At any time after the commencement of such action the defendant might have paid the mortgage and costs of the action or he might have bid in the property at the sale. It was not, until the title had vested in some other person through a deed given pursuant to the judgment in such action that the defendant was absolutely or legally disabled, and performance on his part rendered impossible; and until that time the' duty devolved upon *60the plaintiff to continue the payment of her monthly installments, if she wished to retain her right of action against her vendor, to recover the payments she had made upon her contract to him. She was eight months in default when the property was sold, and the judgment of the Municipal Court must, therefore, be reversed and a-new trial ordered, costs to abide the event:
Woodward, Jenks and Thomas, JJ., concurred; Bdrr, J., read for affirmance.