delivered the opinion of the court.
This is a suit for the debt and interest remaining unpaid on a bond given by the defendants for five thousand eight hundred and eighty-seven dollars and seventeen cents, payable at twelve months, to the County of Andrew, for the price of certain swamp lands sold to the defendants Craig and Abney by the sheriff, under an order of the County Court. At the time of the sale the sheriff executed to the purchasers *531certificates of purchase, by which he stipulated (without any authority whatever, so far as appears) to the effect that if the county failed to get a good title to the lands, the bond for the purchase money, as well as the certificates of purchase, were to be void.
The defendants answered, setting up the agreement evidenced by the certificates of the sheriff, and denying that the county had acquired any title to the lands, or any of them, and insisting there was a failure of the consideration of the bond. Another ground of objection to the plaintiff’s recovery, urged in the answer, is that the plaintiff had not, before the institution of the suit, made or offered the defendants any deed for the lands so sold.
On the trial, the bonds and certificates were read in evidence. The plaintiff also read a list of lands, including those sold, certified by the secretary of State to the clerk of the Andrew County Court, as swamp lands of said county, which was shown to have been filed by the clerk in his office on the 22d of May, 1858, before the bond became due.
At the close of the evidence, the court, of its own motion, instructed the jury in effect, that, although the plaintiff had shown a good title to the lands sold, yet, inasmuch as there was no evidence to show that the plaintiff had made or tendered a deed to the defendants for the said lands before the institution of the suit, the plaintiff could not recover. The plaintiff, on the giving of said instruction by the court, of necessity suffered a non-suit, which she afterwards moved to set aside; but the motion was overruled, and the case is brought here by writ of error.
The only question in the case is involved in the instruction : Was the tender of a deed prior to the bringing of the suit necessary to enable the plaintiff to maintain its action ? The principle upon which the instruction of the court is based, however applicable to ordinary contracts made under the general law of the land, has no application to cases like the one at bar. The sale of the lands in this case was under a special law, applicable to an isolated class of property, with *532rules for the conveyance of the title defined and peculiar to itself; and parties purchasing property under it must be held to have made their contracts in subordination to its provisions. By the provisions of an act concerning swamp lands, approved March 3, 1851 (Sess. Laws 1850-1, p. 238), power is given the County Courts to order their sheriff to sell. By the fourth section of the act, p. 239, it is enacted that “ whenever full payment shall be made for any of said lands by the purchaser thereof, the County Courts shall cause the same to be certified to the governor, Avho shall thereupon grant to the purchaser, his heirs or assigns, a patent for the same, which patent shall be signed by the governor, countersigned by the secretary of State, and be recorded in the office of the secretary of State.”
The county was under no obligation to make o'r tender a deed before suit brought, and the instruction was therefore erroneous, and the non-suit ought to have been set aside.
The judgment of the Circuit Court is reversed and the cause remanded, with directions to proceed with the case in conformity with this opinion.
Judge Bates concurs. Judge Bay did not sit in the case.