majority">By the Court, Savage, Ch. J.

The material question is upon the declaration. The payment of the money, being a condition precedent, it is contended that the plaintiff should have averred an offer to pay; and that he does not excuse himself by averring a sale of the land by the defendant to Or-en Sage.

This case is the same in principle as that of Robb v. Montgomery, (20 Johns. R. 15.) The parties are reversed, but that does not change the principle. The note here is tantamount to an absolute promise to pay the amount,and the defendant covenants that on payment he will convey. In that case, the action was brought on the covenant to pay the money, and the defence was, that the plaintiff had incapacitated himself to convey, and therefore the defendant refused to pay. There was no offer to pay on receiving a deed; no demand of a deed. The facts of a conveyance to a trustee, with notice of his readiness to perform, were before the court in that case, but are not in this case, when considering the sufficiency of the declaration. Here, the broad question is put, whether a party, who had contracted to convey to *534ceU'din premises and conveys them to another, is liable to pay damages to the plaintiff, though the plaintiff never offered to perform a condition precedent rat his part % This precise question is answered by the propositions which Chief Justice Spencer lays down in the conclusion of the case of Robb v. Montgomery. He says, that when the payment and conveyance are to be-simultaneous acts, then there must he an existing capacity in the one who is to convey, to give a good title; hut where the payment is to precede the conveyance, it is no excuse for non-payment that there is? not a present existing capacity to convey a good title, unless? the party, whose duty it is to pay, offers to do. so, on receiving a good title, and then it must he made to him. According to the principle above laid down, the plaintiff in this case, being obligated to pay, before he could demand a deed, should have made the offer of payment and demanded & deed. The absence of the defendant from the place, where the contract was made, is no excuse j for though the plaintiff did not know where the defendant was when he sold the lot m question, yet he did know before suit brought; and, though the defendant had divested himself of the title, yet bad an offer of payment and demand been made, he might have been re-vested with the title, so as to have fulfilled his contract. In my judgment, therefore, the declaration is bad, and the defendant is entitled to judgment on the demurrer, with leave to plaintiff to amend.

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