The opinion of the Court was delivered by
Burnside, J.(after stating the facts of the case). — The covenants to deliver the deed clear of all incumbrances, and the payment of one half the purchase money, were mutual and dependent; the distinction between dependent and independent covenants is well settled ; in the former, between a vendor and vendee of land, the conveyance and payment of the purchase money are to be simultaneous acts, and there must, therefore, be an existing capacity in the vendor to give a good title; in the latter, when the payments are to precede the conveyance, it is no excuse for nonpayment that there is not a present existing capacity in the vendor to convey a good title, unless the one whose duty it is to convey offers to do so on receiving a good title, and then it must be made to him or the contract will be rescinded. Robb v. Montgomery, (20 Johns. Rep. 20.)
If the vendee had paid his money, and an incomplete deed were tendered to him, he may refuse to accept it or to enter on the land; and if he has entered, may restore the possession and sue for his money. Sug. Vend. 312; Withers v. Atkinson, (1 Watts 247-8.) Here the purchaser gave notice and restored the possession on the 17th April; all the incumbrances were not removed until the 20th; and when the deed was tendered to him, he refused to accept it. We cannot say that under these circumstances he was bound to accept it. The plaintiff had not regarded his covenants; had not, in time, placed himself in a situation to enforce performance by the vendee. If a sufficient conveyance clear of incumbrances had been tendered to the vendee before he had removed from the premises, the plaintiffs would have presented a better case. We can discover no error in the charge of the court. The present defendant as security on the note might avail himself of any defence with which his principal was clothed.
Judgment affirmed.