By the Court,
Cole, J.It .is expressly stated in the agreement between McClurg and Van Pelt set forth in the pleadings and evidence, that it is subject to the contract entered into between McClurg and Mrs. Hurlbut. If Mrs. Hurlbut had performed her contract according to its terms, she would have been entitled to a conveyance from McClurg of an undivided one third interest in the real estate therein mentioned. In that case Van Pelt would be entitled, under his contract, to a conveyance of a like interest in the same property. But if Mrs. Hurlbut should make default in her contract, and the same should become null and void, then Van Pelt, upon making the payments in his contract, was to have a conveyance, by a good and sufficient warranty deed, of an undivided one half of the real estate. All this is very clearly expressed and provided for in these two contracts. But it appears that Mrs. Hurlbut did not make default in her contract, but sold it for a valuable consideration to Mc-Clurg. Under these circumstances, what are the rights and obligations of Van Pelt under his agreement? Are they greater or other than they would have been had Mrs. Hurl-*351but retained her contract and kept and performed its conditions, or sold her interest in it to some third party? cannot see that they are. The counsel for the plaintiff in error seems to suppose that McClurg could not purchase and hold that contract for his own benefit. But what is there in his agreement with Van Pelt to prevent him ? Suppose the property had been greatly enhanced in value, and he had purchased Mrs. Hurlbut’s interest ? Could Van Pelt have claimed that he should convey the one half to him ? It seems to us not. It is contended that the situation of Mc-Clurg was that of a trustee for the defendant, and that he could not by purchase acquire any interest in the property beyond the one half, even if he bought in the outstanding contract from Mrs Hurlbut. As a matter of law the ' court was asked thus to charge the j ury. This instruction was refused, and, as we think, very properly The court was also asked to instruct the jury that the interest of Mrs. Hurlbut under the contract could only be transferred to McClurg by writing signed by her. The court gave the instruction, but with a qualification, that McClurg, having paid a valuable consideration for that interest, could compel a specific performance or a proper assignment of it. We deem the whole instruction immaterial, for this reason: if Mrs. Hurlbut had not assigned her interest in that contract, she still held it; if she had assigned it, the court could not say, as a matter of law, that it must be for the benefit of Van Pelt.
We do not deem it necessary to make any further observations upon the fourty, fifth, and sixth instructions asked for on the part of the plaintiff in error, and refused. The fourth and fifth instructions go upon the idea that an effort was made by the defendant below to vary or change in some manner the terms of his contract with McClurg. Not so. We have already said that this agreement, by its terms, was subject to the contract made with Mrs. Hurlbut. And if Mrs. Hurlbut never made default in that contract — and the whole j)roof shows she did not — then Van Pelt never became entitled, under his agreement, to a conveyance of more than one third interest, upon paying that proportion of *352the consideration money, and of course can only be com-to take that interest in the property.
The first instruction given by the court was quite as favorable to the plaintiff in error as the facts in the case would warrant Unquestionably McClurg, or his assignee, could have recovered the different instalments upon the contract as they became due, without alleging or proving a tender of a proper conveyance. But we think it is clear that no action could be maintained for further instalments after Van Pelt had offered to pay all he was bound to under the contract, and demanded such a conveyance and was refused. _ And it is equally manifest that Van Pelt was entitled to a good and sufficient warranty deed of an undivided one third part of the real estate, free from all incumbrances. This is the kind and nature of the conveyance called for by the contract.
We are therefore of the opinion that the judgment of the circuit court must be affirmed.