By the Court,
Cole, J.The record in this case states that the circuit court refused to receive any testimony on the trial, and dismissed the complaint, for the reason that it was not alleged therein, that the appellant, before the commencement of the suit, made out and tendered to the respondent for execution, a deed of the land which he claimed should *338C01iyeyed ^1™- THe action was for the specific per-of a parol contract for the sale and conveyance of real estate, where the appellant, relying npon the dne execution of such contract, alleges that he went into possession of the property and made valuable improvements thereon, with the knowledge and consent of the respondent. Upon paying to the respondent the true amount due him upon settlement, he insists that he is entitled to his deed, and this does not seem to be seriously denied in the answer.
Now, if we assume that it was the duty of the appellant, under the facts disclosed in the pleadings, to prepare and tender to the respondent a deed for execution, still it is very clear that his neglect to do so would not go to his right of action, but only affect the question of costs. Por a court might well refuse to give costs against a party who was not in default, and who was ready and willing to execute a deed when the same was tendered to him, by the other party, upon whom the law imposed the duty of preparing the conveyance. But under such circumstances the court, while refusing to mulct the defendant in costs, would still require him to execute the deed which he ought to execute.
In this state we have held that a vendor of real estate who has covenanted to convey by a day certain, was not in default, until the party who is to receive the conveyance, being entitled thereto, has demanded it, and waited a reasonable time to have the same drawn and executed. Dye vs. Montague, 10 Wis., 18. This in effect, is deciding that, as a general rule, it is the duty of the vendor to prepare the deed, unless there is some stipulation or agreement of the parties to the contrary.
The circuit court, therefore, improperly dismissed the complaint for the reason above stated, and should have proceeded to try the action upon the evidence offered.
The judgment of the circuit court is therefore reversed, and the cause remanded for further proceedings according to law.