By the Oourt,
Hogeboom, J.I think this judgment should be reversed and a new trial granted therein for the following among other reasons :
1. Kerr had a clear right at any tiihe on or before April 1, 1862, to purchase the premises by paying $10,000 for them, and all arrearages of rent.
2. Prior to the 31st of March, 1862, he, or the plaintiff with his consent, had made an absolute purchase and obtained the title of two of the five heirs of Elisha Purdy. There is some plausibility in saying that this was a part performance on his part and on the part of the persons who together represented Elisha Purdy after his decease, showing *30an unequivocal election on the part of Kerr to purchase the property, and a recognition by them of such right, which would without any further tender entitle him to file a bill for specific performance. But I have not particularly examined the question, and am rather inclined to think that by the death of Purdy the interests of the heirs became severed and Kerr was obliged to purchase of each separately.
3. Although Kerr did not on the 31st of March make a strict tender of the money to the three remaining heirs, he ' offered to pay—at least evinced his willingness to pay—the purchase money and the back rents, and his desire to obtain a deed of the premises. The testimony of Van Arsdale shows a sufficient offer of the money and an unqualified refusal to execute a deed, to make a strict tender necessary.
Perhaps the preponderance of testimony qualifies to some extent the testimony of Van Arsdale, but the whole testimony recognizes his willingness and desire to pay the money on receiving the deed, and his election to make the purchase.
4. It is sufficiently plain that Kerr supposed he had done enough, on the 31st of March, to entitle himself, to a deed. The referee so says in his opinion. It is obvious that he meant to do so, from the fact that he had got Judge Barnard to provide him with $10,000 in gold to be used, if necessary, 'in making a tender ; which he would have used on the first of April, if he had not supposed the occurrences ■of the day previous made it unnecessary. Judge Barnard, his counsel, must have supposed the same thing; otherwise he would have gone with him on the first of April to make the tender.
After the first of April, Kerr and wife claimed to be owners of the premises, and no longer lessees.
It is further obvious that he meant to purchase, from his making permanent improvements on the premises to the value of several thousand dollars.
5. There is strong reason to believe a tender would have *31been wholly unavailable to induce the heirs to execute a deed. One or more of them had previously declared their determination not to execute a deed, and their belief that they were not obliged to. And I think it on the whole a fair inference from the testimony that a deed from the whole of them could not have been obtained, even if an absolute tender had been made.
[Albany General Term, September 18, 1866.6. I think, further, the facts show that the premises were incumbered by a dower right and by a mortgage, and therefore that a strict tender was unnecessary.
7. The delay in bringing this suit is sufficiently expressed by the continued and uninterrupted avowal of ownership by the Kerrs after the first of April—by their exclusive possession of the premises since, under claim of ownership, and refusal to pay since that time—by the commencement and pendency of the partition suits—and by the absence of any change in the condition or interests of the Purdys in-the property. All these are either found by the referee, or.are apparent from the testimony, and together show that the defendants will receive no further detriment from sustaining this action now than if it had been commenced at an earlier period.
8. Under these circumstances the plaintiff institutes this action for the specific performance of the contract—offering to pay the purchase money and the arrearages of rent. I think the offer is in time, and that she is entitled to a decree for that purpose. If she or her husband has failed before suit to make a sufficient tender or offer, that may be taken into consideration in equitably adjusting the costs. I t.bink time was not so much of the essence of the contract as to bar this right, and that a strict tender was made unnecessary, or would have proved unavailable, in view of all the facts and circumstances proved in the case.
I am of opinion that the judgment should be reversed, and a new trial granted, with costs to abide the event.
Miller, Ingalls and Hogéboom, Justices.]