This action was commenced in April 1854. At that time the St. of 1853, c. 371, was in force, giving remedies in equity in suits at law. It provided that certain suits, enumerating many, and, among others, “ all suits for the specific performance of any written contract,” should be by action of contract, setting forth the facts, and praying for relief in equity. This statute was generally regarded as by its terms superseding the proceeding by regular bill in equity, until the passage of St. 1855, c. 194, § 2, by which the option was given to proceed by bill in equity or by a declaration in an action at law.
This suit was commenced whilst the former alone of these acts was in force. It set forth a contract in writing by the defendant with the plaintiff to convey to him a parcel of land in fee, on the payment of a certain sum, at any time- within five years, with interest semiannually. The suit is in form an action at law, praying relief in equity; and as specific performance *218cannot be had by a judgment at law, but may be afforded in equity, we regard this action, by force of the St. of 1853, as a suit in equity, and that rules and principles of equity are applicable to it.
It will be perceived that by the terms of the contract, the money was to be paid at any time within five years, with interest semiannually. The time therefore was optional with the obligee for payment of the principal of the stipulated purchase money. It appears by the evidence that the three first half years’ interest of the purchase money was paid and indorsed in January 1854, and before the expiration of another half year, in March 1854, the supposed tender was made. There was then no breach of the contract on the part of the plaintiff. It was not a tender in discharge of any obligation, or to save any forfeiture at law. But it was rather a declaration of readiness and a conditional offer to perform on his part, on receiving th,e deed from the other party.
When a strict tender of money is required, it must be an unconditional offer of the full amount due, leaving it only at the will of the other to accept it. But when, in their nature, the stipulations are, the one to pay money and the other to execute a conveyance, and no time fixed, and no provision that either is to be done first, the covenants are mutual and dependent. The one is not bound to pay, without receiving his conveyance ; nor the other to part with his land, without receiving his money. The performances must be simultaneous. In such case, it is not necessary on the part of the purchaser to make a strict tender, and actually to deliver over the money unconditionally, without his deed; it is sufficient that upon reasonable notice to the owner he is ready and willing to perform, and when the performance is the payment of money, that he has the money and is able and prepared to pay, and demands the deed, and the other absolutely refuses to receive the money and execute the deed; that is a sufficient tender of performance to warrant the party so offering to maintain his action. And there may be both dependent and independent stipulations in the same agreement. Kane v. Hood, 13 Pick. 281. Couch v. Ingersoll, 2 Pick. 292. *219The first of these cases is a direct authority on both points, and we think states the principles of law correctly.
In this case it appears that the plaintiff in March 1854 went to the defendant,.-and proposed to pay him the balance due, in order to have a conveyance of the land, according to contract. The defendant told him, “ Go away, you don’t owe me anything.” It is true that the plaintiff owed him nothing, and the money was not tendered in payment of any debt. But it was an offer to perform on his part, and a refusal on the part of the defendant. The fact that the plaintiff had made a computation of the amount due, and tendered the specie accordingly, a fraction short of what was actually due by computation, when he was not bound to make a strict tender, does not prevent his act from being a good offer of performance, if the other party was ready to perform on his part. But making no objection to the amount, the defendant wholly refused to perform.
The same consideration is an answer to the other objection, that the money was not brought into court. When money is brought into court, with a plea of tender, it is an admission of the party bringing it that the adverse party is entitled to it, and may take it out when he pleases. But in a suit for specific performance, it is sufficient for the plaintiff to offer by his bill to bring in his money, whenever the sum is liquidated, and he has a decree for performance.
The court are therefore of opinion, that the verdict must be set aside, and the case stand for trial.