The complaint avers that the parties, on the 17th day of February, 1857, made a written agreement, by which Pan'ker agreed to “sell and convey” to McAllister a certain described tract of land for 889 dollars; “88 dollars, 90 cents, with interest, to be paid by the 1st of August, 1857,” the balance in nine annual payments, to be secured by mortgage, &c.; said McAllister to have immediate possession, and “when the first payment is made said Parker to deed said land to said McAllister.”
It is further averred that, “ on the 31st day of July, 1857, the plaintiff called on the defendant and offered to pay Mm the full amount of the first payment, &c.; that the defendant refused to accept the payment, and positively declared that he never would convey said land to the plaintiff; that afterwards, on the 1st day of August, the plaintiff prepared nine notes and a mortgage, &c., and went to the house, being the place of business of the defendant, to deliver them and make said payment, but could not find said defendant; “that he is, and always has been, ready to comply,” &c.
The complaint was demurred to, and the demurrer overruled, which raises the first point to be decided.
It is insisted that the offer to perform was not sufficient, because it was prematurely made.
As the agreement provided that the first payment should be made “by the first of August,” the averment of the offer to pay on the 31st of July, was sufficient. Barbee v. *14Inman, 4 Blackf. 420. The language used is equivalent to an express undertaking that the payment should be made on or before the first day of Avgust. The party in this case who was to make the payment, had the election as to the time, within the stated limit, at which the payment should be made.
In the case of Reed v. Rudman, 5 Ind. R. 409, relied upon by the appellant, the election was with the party who was to make the deed, and therefore he had the full time to perform the act, and, if necessary, perfect his title. He might, perhaps, in that case, have tendered a deed before the last day, and demanded the consideration.
The second cause of demurrer is, that there is no averment of a tender of the notes and mortgage on the 31st of July.
By the terms of the contract, the payment of the first installment was to precede the execution of a deed by the vendee. The making of the deed was the next thing in order; for regularly no mortgage could be made by the vendee until the vendor had passed the title to him. As the vendor refused to accept the money, and, so far as he could, repudiated the contract, the'tender of a mortgage could not be made; for the vendee had no legal title to the land to mortgage.
The third, fourth, fifth, sixth, and seventh causes of demurrer assigned, are disposed of in what has been already said upon the first and second.
The eighth cause is, that the Courts in Dearborn county had no jurisdiction of the case, as the land sold was situated in Franklin county, as shown by the complaint.
It is urged that a decree for the specific performance of this contract, and the conveyance of said land, although formerly a transitory action, is now local under the 2 R. S. p. 33, § 28, which is, that an action must be commenced in the county in which the subject of the action, &c., is situated:
“ First. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest,” &c.
*15It is said this suit will determine the right or interest of the parties to the land named in the contract. It has beem decided that such an action as this “operates upon the person, and may be' instituted in any county where the contractor resides.” Coon v. Cook, 6 Ind. R. 270. That case is relied upon by the appellee as decisive. We do not so consider it. The record in that case shows that it was instituted and decided before the present statute was in force. It has been decided in the Superior Court of the city of New York, under a statute precisely similar to ours, except that the word tried is employed instead of the word commenced, that the action is local. Ring v. McCoun, 3 Sandf. 528. The change of the single word, if it has any effect, would, according to the reasoning of that case, make the action more certainly local under our statute. This case was referred to approvingly, though the point was not directly involved, in the case of Newton v. Bronson, 3 Kern. 592, by the Court of Appeals of New York.
The defendant answered—first, a general denial; second, third, fourth, fifth, sixth, and seventh, raising the same questions that were raised by the demurrer, and have been already considered.
The eighth paragraph averred that on the 14th day of August, the defendant, being the owner of said land, prepared a deed therefor in pursuance to said contract, and tendered the same to the plaintiff, and demanded the first payment, and that said mortgage and notes to secure the balance of the purchase-money should be executed, &c., and offered to pay the costs that had then accrued in this case, but that the plaintiff refused, &c. The deed mentioned in said paragraph is set forth in the record, by order of the Court, upon oyer craved by plaintiff, and is in the form of a quitclaim of the right, &c., of said vendor.
The plaintiff demurred to the said paragraph of the answer, because, first, it does not contain covenants of warranty, &c.; second, because the wife of said Parker did not join, &c., nor is it alleged he had no wife, &c. The demurrer was sustained.
As to the last cause assigned, it is not well taken. The *16record does not show that Parker had a wife. If such was the fact, it should have been affirmatively shown by reply.
T. and C. Gazlay, for the appellant. P. L. and B. J. Spooner, for the appellee.As to the sufficiency of the deed upon the other point, we think that the contract to make a “deed” and to “convey,” meant and implied that it should be such a deed and conveyance as would give the vendee a sufficient title in view of the provisions of the statute which defines what is necessary to be contained in a deed. But for the reasons above given the judgment must be reversed.
Per Curiam.The judgment is reversed with costs. Cause remanded, &c.