The opinion of the court was delivered, by
Thompson, J.We agree with the learned judge below, that the proof of notice of the time and place of taking testimony to establish the execution of the articles of agreement was primé facie concluded by the decree of the sufficiency of the proof. If such a defect existed, it should have been corrected on appeal. The decree is not to be overthrown in a collateral proceeding.
But we are not so well satisfied that the ruling in regard to the alleged tender was in accordance with the practice in cases of this kind. A defendant in ejectment, who occupies the position of a vendee, if he wishes to maintain his possession, puts himself in the position of a plaintiff in equity, and whatever would entitle him to a decree there, would be sufficient, certainly, to protect him in the ejectment by the vendor.
The defendant in this case made a tender of the balance of the purchase-money, and demanded a deed. In a court of equity this would have entitled him to a decree for a conveyance, on bringing the money into court without the incrementum of interest. His right in equity to a conveyance being thus perfected by a sufficient tender, it would not become incomplete by the mere lapse of time between that and the decree, so as to charge him with accruing interest; if it would, the negligence or inanition of the vendor in the mean time would be sufficient to defeat an equity caused by diligence and activity. This would be contrary to both law and equity.
To apply these principles. The defendant tendered the money due, and the plaintiff failed to put himself in a position to accept by making a deed; and when he thought himself able to do so, brought ejectment without tendering a deed. This he could undoubtedly do. But this is not the point; it is a question of interest. If he had tendered the deed when he got ready to make it, and the defendant had not then accepted and paid the money, he would have lost the benefit of his previous tender *356by not having it on hand, and would have been liable to interest. But he did not choose this course. He brought ejectment on his legal title, and thus gave to the defendant the right to assert his equity only when called on to answer it in court. That he did, by setting up the contract of sale, proving his tender, and bringing the money into court. This was enough, and more than enough, according to some of the cases: Henry v. Raiman, 1 Casey 354; Williams v. Bentley, 3 Id. 354; McGaw v. Lathrop, 4 W. & S. 316. He was not in default in any way after the tender. The plaintiff took no steps to put him in default by trying whether he was ready to pay, or would pay without suit. Even after his offer to pay, when it was.proper to do so, he maintained his good faith, and was therefore not in default, and not bound to pay interest or costs.
I do not see how a tender could be technically pleaded in ejectment. The action is not in form, nor even in substance, a demand for money; and the Act of 1705 applied only to such cases. A tender then was required to be pleaded, and, to avail anything, the money could only be brought into court upon a rule obtained for that purpose. But that never applied to ejectments on a legal title, where the only plea necessary is, “Not guilty.” We think, therefore, that the learned judge erred in his charge upon the subject of the tender, and its effect on the question of interest.
There is another reason for reversing this judgment. By an oversight the conditional verdict fixed no time when the money should be paid. This is always essential.
Judgment reversed, and venire de novo awarded.
Agnbw, J., was at Nisi Prius when this case was argued.