By the Court.
Brady, J.The money paid by the plaintiff was borrowed by her, and the fact also was shown that lie had deposited in bank a sum of money given to her by her fattier, and which she had continued to hold as her separate *60estate. It belonged to her, therefore. There is no evidence in the case to show the husband’s liability for the money thus borrowed, or that he ever had it in his possession, and there are no facts or circumstances from which it may be inferred that such money was his. If a right of action to recover it existed in any person, it was in the plaintiff. The charge of the justice, therefore, that whether the money was her separate property or not, was a question of fact, was not exceptional, because it could by no possibility have injured the defendant. It was more favorable to him than w’as warranted by the facts proved. By the contract of sale, the plaintiff was to execute a mortgage to secure the sum of seven hundred and fifty dollors, and was to pay eight hundred and fifty dollars on the delively of the deed, on or before the 26th July, 1859. She took possession of the premises on the day after the contract was made, 29th June, 1859, but abandoned the premises prior to the 26th July following, when the deed was to be delivered. The defendant, after that day, assuming that the plaintiff was in default, took possession of the premises, and made repairs at his own expense. He did not seek tile plaintiff, and tender a deed, or by any other act, call upon her to perform her contract, or place her in such a position that unless she did perform her agreement, she would forfeit the sum paid. Subsequently the plaintiff, through her attorney, offered or tendered the mo-ney, eight hundred and fifty dollars and the mortgage, and demanded a deed or the money paid. The defendant declined to give either. On these facts the plaintiff was entitled to judgment. The plaintiff was not in default. She had not been tendered the deed, and by the terms of the contract, she was not to pay the balance of the consideration, or give a mortgage, until the deed was delivered. The removal from the premises did not absolve the defendant from his obligation to tender a deed, if he wished to put an end to the contract. He could not hold the money paid, unless the plaintiff was in default. It is well settled (Jewett, J.), that where the covenants between the parties are mutual, and both are to perform at the same time, neither party can maintain an action until he has performed, or tendered performance of his part of the agreement Williams v. Healy, 3 Denio, 363 ; Dakin v. Williams, 11 Wend. 88 ; 2 Parsons on Contracts, 41, note e. The *61defendant having failed and refused to perform, was himself in default, and could not withhold the money. He seems to rely, however, on the declaration of Mr. Anderson, the attorney-at-law of the plaintiff, made on the 15th of July, 1859, that “ she did not want the title ”; but assuming that such was the fact, it is no evidence to show that she did not want it on the 26th of July, 1859, until which day she had to complete her contract. Whether the declaration of Mr. Anderson was a conclusion of Ms own or the avowed wish of the plaintiff does not appear.
I think the judgment should be affirmed.