The Minneapolis & Pacific Railroad Company, to whose rights and property the plaintiff has succeeded, procured of the defendants a contract for the conveyance to it, its successors or assigns, of a strip of land for right of way through their farm. The contract was executed and dated April 27, 1886, and contains a covenant on defendants’ part to convey the land described therein and in the complaint, upon demand and payment of the price stipulated at any time within three years. It also provided that the construction of the road across the defendants’ lana should not *377be commenced until defendants should have been paid or tendered the price agreed on, but “that, upon payment or tender of that amount, within three years from the date of the contract, the second party, its successors or assigns, shall be entitled to a deed free and clear of all liens.” This action for a specific performance of the contract was brought in 1891. The plaintiff, among other things, alleges that its road was located and constructed in the year 1886, upon the strip of land here in question, with the consent and acquiescence of the defendants, and it has since so continued in the exclusive occupation and possession thereof.
It further alleges that it is ready and willing to pay the purchase money, and that it brings the same into court for such purpose.
Tinder the allegations in the answer, the defendants undertook to show that there was fraud in the execution of the contract in this: That, it was agreed and understood between the parties that the deed to be given should be a quitclaim only, and the contract was not so written. The trial court held that the evidence was not sufficiently clear and satisfactory to establish fraud in the execution of the contract. In this we think the court did not err, since the rule in such cases is that the party seeking to avoid the contract should himself be reasonably free from negligence, and the evidence should be clear and persuasive. 2 Whart. Ev. § 932; McCall v. Bushnell, 41 Minn. 37, (42 N. W. Rep. 545,) and cases.
Here nearly six years had passed before the trial. The recollection of the defendants was evidently not very distinct, except they felt sure that it was a quitclaim they were to give, and that the agent who procured it so read the contract.. They did not read it themselves, nor require it to be read in full, nor ask for a copy, though they had ample opportunity to read it if they chose. The contract calls for a conveyance, but not for a quitclaim or a deed with covenants; and the defendants allege that they had perfected the title within the previous five years. A careful examination of the evidence of the defendants, including the cross-examination, satisfies us that the court was right, and that the evidence was insufficient to avoid the instrument.
The court finds, in conformity with the allegations of the complaint, that the company was suffered to take possession of the land in controversy, with the knowledge, consent, and acquiescence *378of tbe defendants, and has ever since remained in the full, open,, exclusive, and uninterrupted possession of said strip of land, and has constantly used and occupied the same, in the operation and maintenance of a railway thereon. It does not appear that the defendants ever made any objection to the construction and operation of the road, though they knew all about it, and this is sufficient to sustain the finding of the court, and to show a waiver of the technical terms of the contract, requiring payment as a condition precedent to such occupation, and the case does not differ substantially from other cases, which not infrequently arise, where a vendee takes possession with the implied consent of the vendor, though that right is not given by the contract.
In respect to the plaintiff’s delay, the conduct of the parties in such cases will be considered in determining the question whether it should be excused; and on this question the plaintiff’s possession and defendants’ acquiescence therein become material, as tending to show that the contract is not forfeited, but is still subsisting. While plaintiff was in the undisputed possession, and no steps taken by either party, there was a mutual recognition of the continued existence of the status quo under the contract. Gill v. Bradley, 21 Minn. 21.
As respects the performance of the contract, the forbearance was mutual, (Waters v. Travis, 9 Johns. 458;) and the lapse of time did not prejudice plaintiff’s remedial right. (Pom. Cont. § 409.)
Under a proper construction of the contract, the covenants to pay and to convey were dependent, and, time not being made essential, and the delay having indeed been waived, there is no substantial reason why the contract should not be enforced.
The evidence is ample and indisputable that plaintiff has succeeded to the title and rights of the Minneapolis & Pacific Railroad Company, and we think the allegations of the complaint in that behalf sufficient. No question was raised on this appeal in respect to interest due defendants, under the contract, after the plaintiff’s entry on the land, but that may be adjusted in the court below without the necessity of a new trial.
There is but one other question in the case which we deem necessary to consider. In the equitable action to enforce specific performance, it is no defense to the merits that a tender of perform-*379anee is not made before suit brought. It is sufficient that the plaintiff offer to perform in his complaint, and the rights of the parties, including the question of costs and interests, may be adjusted in the decree. The failure to make the tender before suit can only affect the question of costs. Lewis v. Prendergast, 39 Minn. 302, (39 N. W. Rep. 802;) Freeson v. Bissell, 63 N. Y. 171.
(Opinion published 57 N. W. Rep. 63.) Application for reargument denied December 13, 1893.The court erred in finding that the plaintiff is entitled to costs and disbursements, and in directing judgment in its favor therefor. As before intimated, this should have been equitably adjusted between the parties in the judgment, as well as the matter of the payment of the purchase money and interest; but as a new trial is not necessary for the correction of this error, the order denying it will be affirmed, but the case will be remanded, with directions to modify the order for judgment in accordance with the suggestions in this opinion.