Opinion,
Me. Justice Geeen :In this case judgment was entered against the defendant for want of a sufficient affidavit of defence, and the question is, whether the plaintiff was entitled to judgment. This question, of course, must depend exclusively upon a consideration of the facts which are set forth in the affidavits of claim and defence. Much of the matter which appears in the paper books, and is there urged in argument to us, does not appear at all in the respective affidavits of the parties, and cannot be considered now, however important it may be on the trial of the case.
*557The cause of action as disclosed by the affidavit of claim arises upon an article of agreement under seal by which the defendant agreed to sell to the plaintiff a tract of land containing 256 acres for the sum of 11850, payable in instalments. The article also provided that, on the full payment of the purchase-money, the defendant should make a good deed for the premises to the plaintiff. Upon the literal terms of the article, therefore, the plaintiff was under obligation to pay the whole of the purchase-money before he was entitled to demand a deed. The affidavit of claim alleges that the plaintiff paid to the defendant sums of money on account of the purchase-money, amounting in the aggregate to $811, and that the defendant “ failed, refused and neglected on his part to comply with the terms of said agreement, in consequence of which the whole of said sums of money, with interest as aforesaid, is due and unpaid the plaintiff by the defendant.” A copy of the agreement is annexed, together with the receipts for the moneys paid.
The affidavit of defence admits the making of the articles and the payment of the part of the purchase-money claimed by the plaintiff, but denies that the defendant “ failed, refused, and neglected ” to comply with the terms of the agreement, and alleges on the contrary that “ he was always ready, willing, and able to comply with the terms of said agreement, until the plaintiff, by his failure and refusal to perform his covenants in said agreement, made it impossible for the defendant to perform his covenants.” In a supplemental affidavit the defendant individuated the particulars in which the plaintiff had failed to perform his covenants, and repeated his averment that in consequence of that failure he, the defendant, was prevented from making the deed stipulated for in the articles.
It will thus be seen that the suit is brought by a vendee of land to recover back money paid on account of the purchase-money, without paying or tendering payment of the whole of the purchase-money, although the contract required him to pay the whole before he was entitled to demand a deed.
The affidavit of claim gives no explanation of the reason why the plaintiff did not pay or offer to pay the remainder of the purchase-money, and, as he was legally bound to pay all *558that he did pay, no right of action results from the mere fact of such payment. This defect in the plaintiff’s affidavit is not helped in the least degree by a general allegation that the defendant neglected or refused to comply with the terms of the agreement, and if it were, it is fully met and answered by the affidavit of defence which alleges the non-performance of the plaintiff as the reason for the non-performance of the defendant, As the plaintiff’s obligation to perform fully, is precedent to the defendant’s obligation, the plaintiff is, by his own showing, in default, and, of course, cannot recover as for a default of the defendant. The payment of part of the purchase-money gives the plaintiff no right whatever to recover it back simply because of the payment, and hence, without any affidavit of defence he would not have been entitled to judgment. The reason is apparent at once when it is considered that the only obligation of the defendant is to make a deed, and that obligation does not arise until after payment of the whole of the purchase-money. Hence it is of no consequence for the plaintiff to say that the defendant did not comply when he has only alleged a partial compliance by himself. No duty is devolved upon the defendant upon such a compliance by the plaintiff. It is, to say the least, extremely doubtful whether the case comes within the affidavit of defence law at all, since the plaintiff’s right of action depends upon facts independent of the agreement, which must be averred and proved, before he can recover at all; but we do not decide this question, as it is not necessary to the determination of the cause.
Judgment reversed, and procedendo awarded.