[ *69 ] *By the Court, The three first of the pleas demurred to are clearly bad, as not being a direct answer to either of the plaintiff’s averments, that he tendered the requisite assumption, and security. The tender of these was fully and directly averred; they presented the material and issuable facts upon which the plaintiff relied as entitling him to recover ; and the only facts to which it is pretended the pleas can be applied. The course of the defendant was briefly and directly to deny the tender in manner and form as the plaintiff had alleged and set it forth ; instead of which, he either denies payment, &c. generally, as in the third plea, or tender pursuant to the intent, &c. as in the fourth and fifth ; concluding in all three with a verification. Had the tenders avered in the declaration been well answered, several complete issues would have been formed, which should have been followed with a conclusion to the country.
The sixth and eighth pleas demanded somewhat more consideration. The sixth raises the question whether the defendant’s covenant calls for any thing more than a conveyance in a certain form, without title ; or whether it was necessary to shew, especially as the plaintiff had denied the fact in his declaration, that he had a fee to convey. The eighth plea supposes that a refusal by the plaintiff on .the fourth, discharged the defendant from all obligation to convey on the fifth day of April.
1. The sixth plea admits, that when the plaintiff came and offered to perform, tendering the requisite securities for the purchase money, the defendant had no title to convey; and insists that the tender of a deed corresponding with the covenant in point of form was sufficient. The covenant is “ to execute a proper conveyance for conveying and assuring the fee simple,” &c. There is then a distinct provision that the conveyance shall contain full covenants. To my mind a proper conveyance for conveying and assuring fee simple, could not be executed by the grantor, unless he held the title. Otherwise it would be but a conveyance proper for conveying and assuring no title at all. The tender was, therefore, clearly bad as coming short of the express intent of the parties. The covenant was more than a *70*stipulation to execute a deed of a certain description or form, to [ *70 ] contain sucb and such covenants. The cases cited by the defendant’s counsel,^therefore, do not apply. Carpenter v. Bailey, 17 Wendell, 244.
2. As to the refusal of the plaintiff on the 4th, to„ receive a conveyance on the day appointed by the contract, or, as we will read it for the present, notice to the defendant that it would be received, I agree that this might have operated as an excuse for the defendant not being ready, and perhaps would have wholly discharged him, had the matter stopped here. Jones v. Barkley, 2 Doug. 684, 694, per Ld. Mansfield Ch. J. and Butter, J. But the refusal on the 4th was not conclusive on the plaintiff. He had a right to change his mind, as he avers that he did, which is not denied by the plea, and still present himself and offer to perform on the fifth. This was equivalent to a revocation of what he had before said, which could not operate as more than a mere license or excuse to the defendant for not being ready. The refusal did not discharge the covenant; but we would not allow the plaintiff thus to play a trick on the defendant. Franchot v. Beach, 5 Cowen, 506, 508. He does not, however, say he had been thrown off his guard, and that he merely wanted time, therefore. He admits, by not denying, what the plaintiff avers in his declaration, that when he did come, and tender a performance, the defendant met him with a general refusal; and would not even receive the securities Non constat that he had parted with the title/or taken any other steps in consequence of the notice)of the day before, so as to be prejudiced by It. IFTieTi37fken the plaintiff ought to be estopped from insisting on performance. But he recanted his refusal within the time fixed by the covenant, and the defendant still continued, for aught we hear, on the 5th and up to the time of the recantation, in all respects as able to perform as he would have been had the plaintiff said nothing.
There is certainly another objection to this plea, the main one urged on the argument, which seems to me quite difficult to overcome. It is not averred that the plaintiff’s refusal was addressed to the defendant. Now it might have *been a refusal answering to the word in the [ *71 ] plea, had it been addressed to a neighbour no way connected with the defendant, and of which he never heard. The utmost the allegation can mean is, that the plaintiff declared on the fourth, that he would not accept a deed on the fifth. The word refuse is a very unhappy one to use for the fourth. How could the plaintiff refuse, in the proper sense of the word, on that day, what the defendant had no right to solicit, or to offer, or to expect, until the next day. The plea, therefore, can mean nothing more than a declaration that the plaintiff would not perform when the time came. This might, in its own nature, as well be addressed to a stranger as to the defendant.
The pleas demurred to are, we think, all bad; and the judgment must be for the plaintiff, with leave, &c.