Fairbanks v. Dow

Whether this action could have been maintained, had Mahurin accepted the deed which Dow offered him, it is useless to inquire at this time. The deed was not accepted, and may be laid out of the case.

How stands the case, then ? No time is fixed by the contract, when the defendant was to convey the farm to the plaintiff. No mention is made of any security to be furnished for the payment of the purchase money. If then, on the one hand, we hold that the plaintiff had a right to demand a conveyance before the payment of the purchase money was completed, we must also hold that the defendant was entitled to demand satisfactory security for the payment of the price of the farm. It would *268be neither just nor reasonable to give to the contract a construction which would compel the defendant to convey without" any security for the payment of the purchase money..

It is by no means clear, that an action can be maintained on this contract, until the plaintiff has tendered to the defendant a deed to be executed. 6 Cowen, 13, Fuller v. Hubbard; Sugden, 163 and 261.

But at all events, we are of opinion that no action can be maintained until security for the payment of the purchase money has been tendered, and a deed of the land demanded. 7 Cowen, 53, Fuller v. Hubbard.

,Verdict set aside, and judgment for the defendant.