i. contbact: specific performance: promissory note. The notes in question were secured by a mortgage which covered the forty acres in question, and also another forty acres belonging to the defendant, . ,. ,r., • , « and were given tor part of the purchase money of , . , * , , . the two said tracts, ihe question in the case is as to whether the plaintiff had performed his part of the contract at the commencement of the action. The evidence shows that the plaintiff, before the notes matured, became apprehensive that the defendant would refuse to perform the contract on his part. When, therefore, he paid Knapp, the holder of the notes, the amount due thereon, he caused the notes to be transferred to himself by indorsement. The appellant claims that, such being the fact, they cannot be considered as paid. If, however, plaintiff was under obligation to pay the notes, then, as between him and the defendant, the payment made by plaintiff to Knapp operated as a discharge of the notes, and not as a purchase of them. What, then, does the evidence show in regard to plaintiff’s obligation to pay them? It shows that the land in question was purchased by defendant for plaintiff; that the notes were given for plaintiff’s accommodation, and that defendant took the title to the land as security. Under these circumstances, if the defendant *665had paid the notes, we have no. doubt he could have collected the amount of the plaintiff. If so, the plaintiffs transaction with Knapp was not a purchase of the notes. The plaintiff could not have collected them of the defendant. The notes and mortgage then in the plaintiff’s hands became immediately discharged.
The defendant doubtless was entitled to the possession of the notes and mortgage upon the delivery by him of a deed of the land to the plaintiff. But it was not incumbent upon the plaintiff to make a tender of the notes and mortgage as a condition precedent to his right to demand a deed. The evidence shows that plaintiff', when he demanded á deed, had the notes and mortgage with him, and so informed the defendant. There is no evidence that the plaintiff was unwilling to surrender the notes and mortgage upon receiving a deed. The defendant’s refusal to deed was based upon other grounds. Such being the fact, we do not think that the defendant can now properly object that no tender was made of the notes and mortgage.
Affirmed.