¶1In the present case, the title of Webber to the horse was conditional, and in case of the non-performance of the condition, upon which alone his title depended, he had none. To have entitled him to the property, he should have shown performance, or an offer to perform. The oxen, which were to go in payment, either in part or in the whole, for the horse, were neither tendered nor appraised. It was the duty of Webber to take the first step. He has done nothing; and by his omission to do his duty, he has forfeited all claims to the property conditionally sold. The plaintiff, there having been no performance of the condition, was entitled to the possession of the property sold; and the defendant, as against him, has no right to retain the same. The defendant having the possession without title, no demand was necessary.
¶2Judgment on the verdict.