The opinion of the court was delivered by
Redfield, J.In this case the court have found no difficulty with the preliminary question made, in regard to the defendant’s right to give notice of special matter, under the plea of non est factum. The words of the statute are, “That the general issue of not guilty, nil debet, or any other gener*552aj p]ea pr0per to the action, whereby the whole declaration is put upon proof, according to the nature of the case, may be made by the defendant, under which general plea the defendant shall have leave to give any special matter in evidence, &c., the defendant giving notice in writing with the plea of the special matter, &c.” It is argued that the present plea is not such a general issue as is contemplated in the statute, as it does not put the plaintiff upon the proof of his whole declaration. But I apprehend, that when the plaintiff declares upon a sealed instrument, the plea of non est factum does put the plaintiff upon the proof of his whole declaration. That the defendant was competent to contract, i. e. sane, and did contract, is all the plaintiff alleges, and this he must prove upon this issue alone. Although the phraseology is not a little indistinct, from an attempt to make it very perspicuous, still I apprehend the first sentence was intended to secure to the defendant the right of pleading generally ; the second sentence being further intended to secure the right of giving special matter in evidence, without the necessity of a formal plea in bar. In this view, it is difficult to perceive, why the latter right should have any necessary dependence upon the defendant having exercised or waived the other. I see no good reason to deprive the defendant of the right of giving notice of special matter, because he has omitted to put the plaintiff upon the proof of what he does not wish to dispute. Nor do I believe such could have been the intention of the legislature ;■ nor do I find such has been the practice, to any considerable extent, in any part of the state. It is believed the practice has been to suffer speciál matter to be given in evidence, by way of notice, in all actions, and under every general issue.
Upon the merits of the case two questions arise:
'j 1. Whether the plaintiff has sufficiently performed, on j his part, to enable him to sustain an action upon the con«tract ? and
2. Whether an agreement with defendant by parol, and without consideration, but before any breach had occured, to accept of something else in lieu of the thing specified in the contract, which agreement the defendant acted upon and performed, so far as he would be bound to, will exonerate him from his obligation ?
*553In regard to the first point, it is believed there can be lit-tie doubt. This contract was for the sale and conveyance by plaintiff to defendant of a certain piece of “ lease-land,” at a specified price to be paid at the same time the deed was to be executed. In such cases the seller must always be ready and able to perform upon his part, as a conditio^r precedent to any obligation on the part of defendant to pay the money. Where the transaction is a sale, and the thing to be performed goes to the whole consideration and is in contemplation of the parties to happen either before or at the time of the payment of the price, it is always held to be a condition precedent. 1 Saunders’ R. 320. d. n. 4 & 5. Large v. Cheshire, 1 Ventris’ R. 147. Duke of St. Albans v. Shore, 1 H. Black. 270. Ferry v. Williams, 8 Taunton, 62, 4 C. L. 18. In the latter case, where the condition precedent was the making title to land, it was held to be sufficient in the declaration to allege that plaintiff “ was ready and willing to make such title.” This allegation was held to imply that plaintiff was able to make such title, and that such ability must be proved on trial. See also upon this point, to the same effect, Mason v. Corder, 7 Taunton, Rep. 9. 2 C. L. Rep. 7. See also Porter v. Shephard, 6 Term R. 665, and Lock v. Night, 1 Strange 569. Also the numerous cases cited in the note to 1 Saunders, 320, a. There is no lack of authority upon this subject, howmuchsoever doubt and difficulty there may be, as it respects many matters pertaining to the nature, kind, quality, and extent of conditions, in deed, and in law. Gardiner v. Corson, 15 Mass, R. 500.
It has been argued in the present case, that the extent of plaintiff’s obligation was fulfilled by the execution of a deed, and that it was at the risk of defendant whether it conveyed title. The agreement now in suit specifies the land sold, but is silent in regard to the title. The price was $650, and the covenant to convey was in these words: “ to convey to said Samuel by a deed of conveyance, a certain tract of land,” &c. Can it be with propriety said that this covenant is satisfied by the “ execution of a deed of conveyance ?” Nothing could be more absurd. The contract is, not to execute a deed merely, but “ to convey, by a deed, &c. a certain tract of land. Could language be more explicit ? What is implied in conveying land ? Surely, that the title shall be con*554veyed. I admit, that when the contract is in terms, for the execution of a deed of conveyance, merely, the obligee must take the risk of the title, provided the party do not divest himself of the title which he had at the time of the contract. Slow v. Stevens, 7 Vt. R. 27. Sir Anthony Maynets ease, 5 Coke, 21. When too the contract in terms requires the execution of a deed with covenants, there may be reason to suppose the parties intended to look to the covenants as the muniments of the title. It was upon this ground that the case of Aiken v. Sandford, 5 Mass. R. 494, was decided. So also the cases of Parker v. Parmele, 20 Johns. 130, and Gazley v. Price, 16 Johns. 266. These cases were very fully considered and very ably illustrated in the opinions delivered by the late Ch. J. Spencer. It was correctly held, undoubtedly, that when the contract in terms has reference to the deed only, it is a sufficient performance to execute such a deed as is specified. But when the contract expressly refers to the title to be conveyed, then the plaintiff,, in order to recover, when the covenants are dependent upon each other, as in the present case, must not only aver readiness to convey but must prove his ability to convey such title as is contemplated by the parties. Jones v. Gardiner, 10 Johns. 266. The case of Judson v. Wass, 11 Johns. 525, although an action of assumpsit, I consider involves the same principle with the present. There the purchaser refused to complete' the sale, because the seller had no title to all the land sold* and the court held that he was not obliged to go forward with the contract. The contract there was to convey the land; so was it here. )How then is it material whether the contract was by deed, or in writing without seal, or without writing 1 It is a question of construction merely. And the terms must .have the same force in all forms oí contract. In contracts of this kind, as well as all others, we must frequently resort to the proof of the circumstances attending the transaction, although not specified in the writing, in order to determine the force of the terms used. Hence, when it was shown in the present case, that both the parties, at the time of the contract being made, understood that the plaintiff had only a leasehold title to the premises and that no other could be obtained, wc should not consider the contract as extending beyond the conveyance of such a title. To that extent, from *555the terms used, it is very obvious the plaintiff did intend to bind himself to convey an unincumbered title. This he had it not in his power to do. The defendant, therefore, was not obliged to part with his money. Gazley v. Price, supra. Parker v. Parmele, Ferry v. Williams, and most of the other cases cited.
Where the contract refers to the instrument only, I think an obligation to convey land by a good and sufficient deed1, and to deliver possession of the same, does require, that the defendant should either be in possession of the land, or at least, that there should not be, at the time of the execution of his deed, an adverse possession, so as to render the deed inoperative. It is upon this ground only that I dissented from the opinion of my brethren in the case of Preston v. Whitcomb, decided on the present circuit. Ante, 47. And I here beg leave to refer to the preceding suggestions, as containing the reasons for my dissent in that case.
This decides the case against the plaintiff, without the ne- : cessity of passing upon the other point presented in argu- \ ment. But we think it very evident, that there was no failure on the part of the defendant, for which plaintiff could ; maintain an action, even,if he had performed on his own part. It is a well settled principle in the law of contract, and equally applicable to all classes of contract, where relied upon by way of defence, that either party may waive, either absolutely or conditionally, any stipulation in his favor, at L._any time before a breach. 2 Stark. Ev. 6 ed. 78. B. N. P. 152. 2 Lev. 124. Gomery v. Bond, 3 M. & S. 378. In short, this principle is so familiar and runs so extensively throughout all the departments of the law of contract, that to cite authority in its support, seems like “ heaping demonstration upon the shoulders of demonstration.” It goes upon the ground, that where one party has induced the other to act upon declarations simply, he must be bound by them, although made without consideration, and affecting his interest ever so deeply. Where this alteration is in regard to a condition precedent, and is necessary to be shown by the party, afterwards seeking redress upon the contract, it is required that the alteration should be by a contract of as high a nature as the original contract; else the party performing the altered contract will lose his remedy. Creig v. Talbot, 2 B. & *556C. 179. Porter v. Stevens, 2 Aikens’ R. 417. But where this is relied upon by way of defence, it is not material, that the alteration, if made before any breach, should have been upon consideration or under seal, in any case; for if acted upon, it is sufficient. 1 Swift’s Dig. 288. 1 Johns. R. 22. If the payee agree to an alteration of a contract, and the payor fail to perform either the original or substituted contract, the payee may sue upon the original contract. Wood v. Winship, 12 Mass. R. 481. Baker v. Mair, 12 Mass. 121. It may be true, perhaps, that a mere naked agreement to alter a contract may be revocable, while the parties may be placed in statu quo, but not otherwise, I apprehend. And an agreement upon consideration to alter a contract has been held irrevocable, but probably it should be of as high a nature as the original contract; or should have been acted upon as in the present case.
But after a breach of contract, whether simple or under seal, a mere accord without satisfaction is no defence. But an accord and satisfaction is wholly inapplicable to the subject of subsisting contracts. And the decision, in this case, rests, it will be perceived, upon grounds wholly different.
Judgment affirmed.