The opinion of the court was delivered by
Redfield, J.It is true that a deed of land, to be admitted as evidence, even in a suit between the parties, if proved only by the acknowledgment of the grantor, must be first recorded. But when the clerk of the proper office has duly certified, upon the deed, that it has been properly recorded, we do not think the effect of the evidence can be defeated by showing a mistake in the record, certainly not, where that mistake does not affect the interest of the person, against whom the evidence is offered.
We think that, by the terms of the contract, the defendant did assume the obligation of severing the plaintiff’s portion of the products of the farm. This depends upon the terms of the contract. In the ordinary case of letting a farm for a share of the crops, both parties may be equally bound to make the severance; but where, as in the present case, the lessee undertakes to “ deliver” the lessor’s portion in specified places, he is bound to the same extent he would be in ordinary cases of contracts payable in similar commodities. And not having done all that his contract required him to do, at the proper time and place, he is now liable for that default. The case is not in principle any different from that of Brainard v. Newton v. Burton et al, 5 Vt. R. 97. It was there held that the lessor had no interest in the crops, until “ after delivery.” And it is obvious here, that the defendant did bind himself to the delivery, and until that he had not performed his contract. To deliver to the plaintiff one sixth part of the crops, means something more than to deposit the whole crop in the specified place. The plaintiff’s- portion must be secured. For it does not appear that the plaintiff had any control over the land, or any property in the crops, until *24they were raised, and her portion “delivered.” She had no interest whatever in two thirds of the land upon which the croP was to raise(^- & was a letting of the land and the rent to be paid in this particular manner. Such are the very terms of the contract.
The motion in arrest of judgment was correctly overruled. It seems, from the argument at the bar, to have gone mainly upon the ground that there was no sufficient breach of the contract alleged in the declaration. But we think the allegation that the nine years rent, declared for, was due at the commencement of the action, shows a sufficient breach of the contract, at least after verdict. The term due in its usual acceptation signifies, not only that the time of payment has expired, but that the debt is unpaid. And if the term were equivocal, even, it should, after verdict, be understood in that sense which will sustain the verdict, rather than the other, if it will as well comport with the context and eircümstances of the case, which will not be denied in the present case. We have not been able to see that the breach alleged, according to this construction of the terms used, is broader than the contract, as set forth in the declaration. The one is, we think, co-extensive with the other. The declaration, all along, goes for the whole rent accruing from the date of the contract until the death of the defendant’s intestate, which is about nine years, and the breach alleged is that on the first day of March, 1838, there was due to the plaintiffs the rent accruing from the 25th April 1828 to the 1st day of March 1837. In a former part of the declaration it is alleged that defendant deceased on the second day of March 1837.
Judgment affirmed.