¶1The contract to convey is ambiguous and I think the interpretation given to it by the learned county judge was correct.
¶2It is trae that in one part of the contract the plaintiff agreed to convey, importing a conveyance to herself and a reconveyance to the defendant; but other portions of the contract and *368the interpretation given to it by the parties themselves show that,, what the plaintiff was to do was' to obtain conveyances to the defendant from the heirs of Joseph Lamping if she could and as fast as she could. The covenant on the part of the defendant was to pay for the whole property the sum of $2,000, and “ in the manner following, that is to say, to be due and payable as fast and .as quick as she [the plaintiff] can get title of same from the Joseph Lamping heirs, she being one of said heirs.” Then the following language is.used: “On payment of the sums to be so paid soon as she can get title from the heirs, the party of the first part [plaintiff] covenants bn that day to deliver to the party of the second part the deed aforesaid.” The same language is used in another part of the instrument with respect, to the plaintiff obtaining title as soon as she could.
¶3Both the plaintiff'find the defendant assumed that the plaintiff was carrying out the contract by producing her sister to the defendant, who was willing to convey for the sum of $200, the defendant taking her deed and paying her that- sum.
¶4The plaintiff testified that what she supposed she-was agreeing to was to obtain conveyances by the heirs to the defendant if she could. The language of the contract is “on payment of the sums tobe so paid,” using the plural, and the defendant himself testifies that he told the plaintiff that he wanted the other titles as soon-as she could get them.. The defendant also testified that Mr. Cushman, the draftsman, communicated with him and asked him if he would take conveyance of the plaintiff’s share, and he said that unless he got all the shares her share would not do him any good. ■ '
¶5The lease and. the contract to convey were drawn on the same day and together made practically one transaction. The lease was for the term of one year, but contained the further clause: “In the event that party of second part does not buy and get title to said' farm within the next year, then and in 'that event he has the privilege of renting said place two years longer at same terms of rent.” The use of the term “buy and get title ” in the connection in which it is employed indicates that the defendant expected to purchase from time to time such shares as he could until he got complete title, and *369not that the plaintiff was to get title in herself and then convey to him. Besides, the defendant expected that it would take a long time to gather the title together, as indicated not. only by the language of the contract to convey, but by the clause in the lease above quoted. A reasonable time, therefore, under all the circumstances was not a few weeks or even a few months. .Certainly it cannot be claimed that time was the essence of the contract. Before that reasonable time had expired, and on the 1st day of September, 1907, a partition action was brought, without any procurement of plaintiff, and the defendant seems to have assumed that it was useless to attempt to obtain conveyances from any of the heirs thereafter.
¶6But if the contract to convey is. to be interpreted as indicated by the prevailing opinion, still I think the defendant had no cause of action on his counterclaim, for the reason that he had never put the plaintiff in default by a proper tender and demand that she make conveyance to him.
¶7The summons in Justice’s Court was issued on May 7, 1909, and defendant filed his answer setting up his counterclaim on May eighteenth. Various adjournments were had and judgment was rendered on June twenty-sixth. The sale under the partition action occurred in July or August following. The defendant testified that he never had any talk with the plaintiff about the title of the other heirs or herself after July or August, 1907, and then he only told her that the money for her share was ready any day she wanted it. He further testified that he never demanded a conveyance of the plaintiff’s share other than telling her he was ready for it and wanted it any time, and that she never refused to convey it to him. Defendant had, therefore, never tendered the purchase price and demanded a "deed from the plaintiff before May 18, 1909, when he set up his counterclaim for liquidated damages. If the plaintiff agreed by her contract to convey to the defendant at all hazards, payment. of the money to her and delivery of the deed were dependent and concurrent acts. In Higgins v. Eagleton (155 N. Y. 466, 473) it is said: “It is a well-settled rule that to entitle a party to recover damages for Ihe breach of an executory contract of this character [conveyance of land] *370he must' show a tender of performance upon his part and a demand of performance by. the other party: It must he established in some way that the other party is in default, or that performance, or tender of performance, has been waived.” In order that the defendant might have the right to enforce his claim for liquidated damages, under the contract,- it is incumbent upon him, .therefore, to show that he had made a tender of the money and demanded a deed, and that the plaintiff had refused or neglected to furnish it, unless the plaintiff had absolutely refused to convey or put it out of her power so ■to do. She never refused to convey and she never put it out of her power to make conveyance. While it might have been embarrassing to obtain the title of the various heirs after the partition action had been instituted, if the defendant had done what he was obliged to do, to wit, demanded performance and made a tender of the money, it cannot be assumed that she would have been unable to obtain the conveyances and terminate the partition action.
¶8Nor can it be said that the plaintiff so neglected to obtain title as to render her liable. Whether there was such neglect must be judged by all the circumstances. Time was not important. A reasonable time had not expired when the partition action was begun. After that action was begun. the defendant never spoke to the plaintiff on the subject, as he himself testified. I think it was incumbent upon the defendant, under the peculiar circumstances disclosed, to at least request the plaintiff to obtain conveyances from the heirs during the two years in .which the partition action was pending before she should be charged With actionable negligence.
¶9For these reasons I think the judgment should be affirmed.
¶10Betts, J., concurred.
¶11Judgment and Order reversed on law and facts and new trial granted, with costs to appellant to abide event.