By the Court,
Lacy, J.The point to be decided is, on whom does the law devolve .the duty of preparing and tendering the deed between the vendee and vendor. The rule on this subject is thus laid down by Sugden in his admirable treatise on Vendors, at page 178, “That the’ purchaser, and not the vendor, is bound to prepare and tender the conveyance.” This point was expressly adjudged in a late case before the court of Exchequer in Baxter vs. Lewis, 1 Fo. rep. Exchq., and in Webb vs. Balle, 1 Lev. 44. Windham, Judge, said that “where a person is to execute a conveyance generally, there the counsellor of the purchasor is entitled to draw it, and there the purchaser ought to tender it.” And it is upon this principle that a purchaser cannot maintain an action for a breach of contract without having tendered a conveyance and the purchase money. Jones vs. Barkley, Doug. 684. Phillips vs. Fielding, 2 H. Black. 123. The expense of the conveyance must be borne by the purchaser, if there is not an express stipulation to the contrary. The rule seems to have been otherwise during the early stages of the common law. But upon the modification of estates, which brought with it the difficulties that surround modern conveyances, it became necessary to make an abstract of the numerous instruments of title, for the purpose of submitting it to the purchaser’s counsel, and then it was settled as a principle of practice, that it was the purchaser’s duty to prepare and tender the deed, and this at his own cost. The reasonableness or justice of the rulé may be somewhat difficult to discover at the present day, but the principle being unquestionably settled, it would work injustice and wrong now to change it, and we are not at liberty to do so to remedy a partial evil. We are not aware of any adjudication to the contrary, except a few cases in Blackford’s Reports, and some loose dicta thrown out by the English judges; and these are wholly insufficient to overrule the general current of both American and English authorities; and that too where the point has been expressly and solemnly ruled on many occasions. The law is so written and we cheerfully obey its mandate. This position being true, it necessarily follows, that the fourth plea of plaintiffs in error, constitutes no good bar to the action. That plea alleges that the vendor was bound to convey generally in fee, a certain tract of land, immediately after the execution of the obligations of the vendees, for the amount of the purchase money; but it wholly fails to aver that they prepared and tendered the conveyance which was refused to be signed and delivered according to the contract, or, that the vendor, by the terms of the agreement, expressly took upon himself the duty and cost of preparing and tendering Ihe deed,, which he neglected or omitted to do. For the want of one or the other of these averments, we hold the plea to be fatally defective, and of course it was reached by the demurrer to the replication. We do not think these defects are cured by the pleas alleging that the contract to convey rested in parol. If the purchasers thought proper to take from the vendor a parol agreement, instead of a written one for the conveyance, they will not be permitted to avail themselves of their own act to avoid their contract. Judgment affirmed.