delivered the opinion of the Court:
We concur in the views expressed in the foregoing opinion of Mr. Justice Moran, both upon the law and the facts.
The acts required to be done by the respective parties, after the signing of the contract, are to be done in this order: First, Cravener is to pay $500 in cash, which was done; second, Hale is to furnish to Cravener, on or before January 10, 1887, or as soon thereafter as the probate proceedings in the estate of Matilda Hale, deceased, can be finally settled and the abstract of title continued to show such settlement, an abstract of title, showing good title, and power and authority to sell and convey; third, Cravener is to pay Hale, ten days after said abstract shall have been furnished, $3500, and execute the notes and mortgage stipulated, for the balance of the purchase money; fourth, Hale is to convey the land described to Cravener, in fee simple, free and clear of all incumbrances whatever, by a good and sufficient warranty deed.
Bach party, it will thus be seen, is obligated, absolutely, to perform his undertaking in the order thus stated. There is no stipulation whereby either shall be released therefrom without the consent of the other. The doing of the preceding act by the one, necessitates the doing of the succeeding act by the other. Of course, either party may waive (because he may give away what he pleases) the doing of the preceding act by the other, and proceed to the performance of the succeeding act; but unless he shall do so, this order of sequence must be observed.
The stipulation that in case the abstract of title to be furnished does not show a good title, the $500 paid at the date of the execution of the contract shall be returned and the contract determined, can not be taken advantage of by Hale, because, first, it is manifestly designed for the benefit of Cravener, only. Hale, it is to be presumed, knows the title he has, while Cravener does not; and since it can not affect Hale adversely if Cravener shall be content to take a bad title, he may elect to take any title which the abstract discloses. Second, Hale’s undertaking to convey is entirely independent of his ability to furnish the required abstract, and is in no respect conditional.
Cravener does not now have an option to take the title of Hale, or not, at his election. He had an option to accept the title offered, or to reject it, because of the pendency of the suit, unknown to him and not disclosed by the abstract, to set aside the will, when he learned the pendency of that suit; but that he waived, by an agreement, tacitly, at least, made with Hale, to postpone the further execution of the contract until the termination of that suit. If that suit results in sustaining the will, he is obliged to accept the title, and he can exercise no option whatever, and the contract is not, therefore, unilateral in this respect.
The judgment is affirmed.
Judgment affirmed.