—A motion for a nonsuit was made in the present case, among other reasons, upon the ground that the plaintiffs failed to show that they had tendered a proper deed, and that the place of tender was not the place of ■business of'defendant.
In regard to the latter point, it is sufficient to say that the complaint -avers that the deed was tendered at the place designated .and appointed by the defendant. This is not denied in the answer, and is therefore conclusive (Franchot v. Leach, 5 Cow., 506).
The denial of a tender of a proper deed rests upon the supposed defect in the description of the premises, and in the mode of execution.
The deed was acknowledged by two of the parties before a commissioner for the State of Hew York residing in Rhode Island, and there was not attached to the deed any certificate of the Secretary of State, so as to permit it to be recorded. -
The same objection also existed to the acknowledgment of two other parties before a commissioner of deeds of the city and county of Hew York.
The deed could not have been recorded without obtaining a *471certificate from the clerk of the city and county of Yew York as to the one, and from the Secretary of State as to the other.
The validity of this objection depends upon the decision as to which of the parties was under the necessity of procuring the certificates.
It appears to me that without such certificates the conveyance was not perfect. It is true that either party could have procured the same, but until procured the deed could not have been recorded, and in the time which would have been required to obtain them other conveyances or encumbrances might have been put on record, so as entirely to defeat the purchase. The certificates are as necessary as the acknowledgment, and without them the deed, although valid against the grantor, would be of no force or effect against an innocent purchaser or subsequent encumbrancer. It can never be maintained, that a party who contracts to convey land in Yew York may execute a deed in a foreign country, or in another State, and deliver such deed in an imperfect condition. A party who has to deliver a deed of land in pursuance of a contract, is required to deliver it in such a condition as to make it at once operative to the purchaser against all parties. Such is not the case where the deed cannot be recorded, and the purchaser is put to delay and expense to complete the same. If the deed had been executed where the land to be sold was located, such certificate would have been unnecessary ; but when the vendor, for his convenience, executes it elsewhere, he must provide all that is necessary in consequence of such execution, so that it may be recorded where the land lies.
It is said that the objection should have been taken to the reading of the deed before the referee; but such an objection cannot be taken to the deed when produced on the call of the opposing party; and the production was necessary to show that the deed was defective.
It is also said that the plaintiffs were not bound to tender a deed, because by the contract the plaintiffs were only to convey as soon as the defendant was ready, and tendered a compliance on his part. This is so if the defendant sought to put the plaintiff in default. "But the contracts were not dependent, so that the plaintiffs could claim damages without, on their part, first offering a conveyance. They were required to tender the *472deed in order to put the defendant in the wrong; and not having tendered a sufficient deed, I think they cannot recover in this action.
It is not necessary to examine the other questions discussed on this appeal, as, for the reasons above mentioned, the judgment cannot be sustained.
Judgment reversed and case sent back to the referee. Costs to abide the event.