The defendant covenanted to convey to
the plaintiff, the premises in controversy, within one year from October 28th, 1850, at any time after four days’ notice, on the condition, that the plaintiff should pay for the same, in the manner stipulated, at the expiration of said year, or the notice to be given.
The conveyance by the defendant, and the payment by the plaintiff, were to be contemporaneous acts, and .each party was bound to perform, on his part, at the fixed time. Such was the legal import of the covenant. 14 Conn. R., 479. 1 Sw. Dig., 206.
The defendant excuses himself for a non-performance on his part, by reason, that the plaintiff did not make the stipulated payment, nor offer to do so, at the time agreed upon, but, on the contrary, refused, at that time, to perform, on his part. That the plaintiff did not pay, nor offer to pay, according to the terms of his covenant, at the time required, is true. Whether the time of payment was, in this case, so much of the essence of the contract, as that a court of. equity will refuse its aid to the plaintiff, by reason of his neglect to perform in time, it is not, perhaps, necessary for us *519to determine, upon the facts here disclosed. We may say, however, in reference to the principle claimed by the defendant, that, when parties have deliberately, by their agreements or covenants, fixed a time for the performance of an act, a court of equity will be very cautious how it interferes, in disregard of it, and thus, in effect, change the contract which the parties have made. It will not do this, unless, by reason of mistake, or some other cause, falling within the legitimate powers of a court of equity, it shall see that essential justice demands the exercise of its jurisdiction, irrespective of the lapse of such time. 2 Sto. Eq., § 776, note. Hepwill v. Knight, 1 Young & Collier, 1415.
But if a party, who insists upon exact time, has been himself the cause of delay, a court of equity will proceed, notwithstanding, to decree a specific performance. Savage v. Brocksopp, 18 Ves., 335. We think that this case falls within this equitable principle. It appears, that there had been a mortgage upon the premises, given by Lanson, the former owner, to Lyman Ailing, which must be removed, before a good title could be given by the defendant. This mortgage had been assigned, by Ailing, to one Elah Gorham, under whom the defendant held this title; and, as the deed of assignment had not been recorded, the plaintiff was ignorant of its exact contents; and, when examined after-wards, this deed was found to contain a reservation by the assignor, in the following words, “ I hereby expressly reserve to myself, such title as I have acquired to the within described premises, by virtue of a certain mortgage deed from the within named William Lanson, dated the first day of June, 1836, to secure the payment of fourteen hundred dollars and interest, &c. . Lyman Ai/ling.”
It appeared from this, that the property was under the incumbrance of another mortgage, under which Ailing still claimed an interest. And when enquiries were made of the defendant, concerning this, he made no explanation, but answered equivocally. The plaintiff, from this manner *520of the defendant, was justified in hesitating and in refusing to receive a quitclaim deed, and even in suspending further advances in the purchase, until an explanation was given, and this cloud upon the title removed.
The question still remains : was the defendant bound to do more than he has done ? to tender inore than a quitclaim deed ? His covenant was, not that he would deed the land to the plaintiff, but that he would convey it.. No form of conveyance was agreed upon, and therefore, any deed, by force of which a clear title in fee would be vested in the plaintiff, would be a compliance with the agreement, whether a quitclaim, or a deed with covenants. Mead v. Johnson, 3 Conn. R., 592. Dart v. Dart, 7 ib., 250. Seymour v. Dodd, 21 ib., 476. It was the duty of the defendant to have removed the apparent incumbrance,—cleared away the cloud upon the title, or have satisfied the plaintiff, that no such incumbrance existed ; or else, he should have assumed the responsibility, by executing a warranty deed, and, in this way, at least, estopped himself from making a future claim. He refused to do this; but actually demanded an additional sum, to clear the title ; he thus, in effect, refused to convey. The contract between these parties was a fair one, and we discover nothing in the conduct of the plaintiff, by which he has forfeited his right to a specific performance of it. We advise that a specific performance be decreed.
In this opinion, Waite, Storks and Ellsworth, Js., concurred. Hinman, J., dissented.
Specific performance to be decreed.