The facts are stated in the opinion. A. J. Clark was the owner of the premises described in the complaint. Upon the twentieth day of May, 1879, he bargained them to defendant Ellen Hawkins for two hundred dollars, payable, one hundred dollars down, and the remaining one hundred dollars on or before the expiration of six months thereafter. He delivered his bond for a deed subject to these conditions to Mrs. Hawkins. Thereafter Mrs. Hawkins entered into the possession of the premises, and becoming indebted to defendant Rhue, conveyed her interest therein to him by deed absolute upon its face, but intended as a mortgage to secure payment of the indebtedness. The bond and deed were recorded in the records of the county during the month of June, 1879. Upon the day the remaining one hundred dollars of the purchase money became due, Rhue requested a deed. Clark caused the deed to be prepared and sent to Rhue at his place of business in Reno. The person whom Clark sent delivered the deed and received one hundred and twelve dollars, that being the amount of principal and interest due. He had been instructed, however, to obtain five dollars additional to cover expenses incurred in the preparation of the deed. This matter escaped his attention for the moment, but recurred to *Page 387 him before leaving, and he demanded it, saying that Clark would be dissatisfied if he returned without it. Rhue refused, returned the deed, and received back the money paid. Clark approved of the action taken in his behalf. Upon the fourteenth day of August, 1883, plaintiff acquired Clark's interest in the premises by purchase, and thereafter commenced the present action of ejectment. Defendants, by way of equitable defense, established the facts above stated, and obtained a decree awarding plaintiff one hundred and twelve dollars, (the unpaid purchase money,) and requiring him to convey the legal title to defendant Rhue. Prom the judgment, and an order overruling a motion for a new trial, plaintiff appeals.
The principal objection urged is that the equitable defense could not be maintained without a tender of the purchase money. The transaction at Rhue's, if not amounting to a tender, at least dispensed with it. But respondent was not required to make an unconditional tender as a prerequisite to relief, although a failure to offer to perform would, under the contract, have entitled the vendor to interest until the completion of the purchase. Rhue was entitled to receive a deed upon paying the money, and Clark was entitled to the money upon delivering a deed. The covenants were dependent, and the acts to be performed, concurrent. Otherwise a purchaser might pay his money without receiving a conveyance. The contract does not make a tender or demand necessary by either party to fix the liability of the other. Tender or demand is not, therefore, a condition precedent to the enforcement of rights under the contract.
In Bruce v. Tilson, 25 N.Y. 197, the court of appeals said: "The contract not making a request or demand essential to the right of the vendor to enforce performance, the law does not annex it as a condition, and it is sufficient if he offers to perform in his bill of complaint, and is able to perform at the time of the final decree. A request by action is sufficient, and a request before action is not necessary. The distinction between an action for a specific performance in equity and a suit at law for damages, for non-performance, is this: that in the latter, the right of action grows out of a breach of the contract, and a breach must exist before the commencement of the action, while in the former, the contract itself, and not a breach of it, gives the action. A demand of *Page 388 performance before suit brought is only important in reference to the costs of the action, and has no bearing upon the merits or rights of the parties; but, by a demand and refusal, the party liable to perform is put in the wrong, and in the situation of unreasonably resisting the claim of his adversary, and is, therefore, chargeable with costs. Costs in equity are always in the discretion of the court, and whether they are granted or withheld, they are but as incidents to and no part of the relief sought. A party getting the relief asked may be compelled to pay costs; but, nevertheless, his cause of action had accrued upon the filing of the bill or the commencement of the suit." In the same case it said: "In order to put a party in default, in the case of dependent covenants, so as to subject him to an action at law, there must be a tender of performance by the other party to the covenant or agreement, and a demand of performance on his part; and when an act is to be done requiring time for its performance, a reasonable time must be given for such performance, unless the party of whom the demand is made absolutely refuses to perform at the first demand. An action at law upon the contract, or to recover back the consideration, as upon a rescission of the contract by the act of one of the contracting parties, can only be maintained upon such technical and formal default, unless it may be in some exceptional cases, as when a party has put it out of his power to perform, so that a tender and demand would be nugatory." (Page 196;Freeson v. Bissell, 63 N.Y. 168;Gray v. Dougherty, 25 Cal. 282.)
It is also objected that respondent did not deposit the unpaid purchase money in court upon filing the answer. The objection assumes the necessity of making and maintaining a tender. The views already expressed dispose of the objection so far as it is based upon this ground. The question whether a vendee seeking specific performance of a contract for the purchase of land must bring the purchase money into court was decided by this court in Schroeder v. Gemeinder,10 Nev. 367. In that case it was held that the rights of a party should not be defeated by such omission, and that if the justice of the case required it the trial court could, in its discretion, order the money brought in. See, also,Webster v. French, 11 Ill. 275, where the subject received thorough consideration. In the present case the money was in fact voluntarily brought into court several days before the trial.
*Page 389The judgment and order are affirmed.