In the present aspect of this case, the court have only found it necessary to consider the ground of the defence arising from the want of title in the plaintiff within the period of ten days from the sale. Upon that point, the court are of opinion that the defendant could not be required to take the land, and make the payments stipulated therefor by the alleged auction sale, the plaintiff not having had, during the time allowed for examination of the title, and for the plaintiff to make his arrangements to give a conveyance thereof, a good title, but only an estate incumbered by a mortgage.
The recent case of Mead v. Fox, 6 Cush. 199, seems directly in point, and decisive of this question. That, like the present, was a public auction sale, in which many lots were offered for sale, and sold to various individuals as bidders, under certain written stipulations to be signed by the bidders. There, as here, ten days were allowed the purchasers to examine the title. Here was also the further provision, that the seller might have “ ten days to make his arrangements to deed the same ; ” implying, as we suppose, to remove any incumbrances, and be prepared to give a good title. This stipulation in the terms of the contract renders it quite plain that this was not a mere contract to take a deed with warranty, but that the parties contracted with reference to a good title.
The obvious character of this contract excludes any application of cases like that of Tinney v. Ashley, 15 Pick. 546, and others of that class, where the terms of the contract have been supposed to be satisfied by a mere warranty deed. To entitle the plaintiff to enforce this contract against the defendant, he was required, within the ten days allowed for this purpose, to qualify himself to be able to give a good unincumbered title to the purchaser. This he did not do. There was, after that period, an outstanding mortgage of a large amount, covering the *532lots sold to the defendant. Whatever verbal arrangements he had made respecting the same, he had acquired no legal discharge, nor any stipulations for a prospective discharge from the mortgagee, until long after the period of ten days, and no actual discharge of the same when the present suit was instituted.
1 There were two other facts shown in the case of Mead v. Fox, which do not appear in the present case, but which, as it seems to us, do not affect the result. It appeared in evidence in that case, that the defendant had in fact examined the records and found the title incumbered; and it also appeared that the plaintiff had tendered a warranty deed to the purchaser. It does not seem to be material for the defendant to learn the fact of the incumbrance from the registry of deeds. The information may as well be received from other sources ; the only material point being whether it was so incumbered, which is not a matter of controversy in the present case.
It is also said that, in the present case, the performance of the contract on the part of the plaintiff might perhaps have been satisfied by his giving a bond for a future deed. This is so; but the defendant had also the right to receive a deed in the first instance, if he paid the whole of the excess above the sum to remain on mortgage, or in the event of his paying the whole of the purchase money.
The case of Howland v. Leach, 11 Pick. 151, cited on the part of the plaintiff, does apparently sustain the plaintiff so far as to show that, where there was an actual tender of a warranty deed to a vendee upon a contract to purchase land, and an absolute refusal on the part of the vendee to accept the same and pay the purchase money, the party was not allowed to set up in defence an outstanding incumbrance on the premises; it also further appearing that the plaintiff, at the time of offering the deed, stated that the parties holding the incumbrances on the title were then ready to discharge the same, and such appearing to have been the fact. In that case, there was no stipulation in the contract as to time to examine or perfect titles ; and there was a present offer, on the day of tender of the deed, that all incumbrances should then be discharged. As that was a case *533of mutual covenants to be performed at the same time, all that was required of the defendant was to offer to pen-form on his part, upon the vendor’s doing all he had offered, and this would have rendered it certain that he received from him a good title But he absolutely refused to perform the contract on his part, and the court held, under those circumstances, that his defence was unavailing. The present case is however, in all its features, much more like the case of Mead v. Fox, 6 Cush. 199, and applying the principles of that decision, the plaintiff, upon the facts reported, has failed to show a legal ground of action against the defendant. New trial ordered.