¶1By the Const.
¶2By the terms of the agreement the plaintiff was to pay the sum of thirteen thousand five hundred dollars, in cash, and by assuming the mortgages mentioned in the agreement, and to execute his bond and mortgage for the remaining seven thousand five hundred dollars, on September 31, 1857; and the defendant, on receiving such payments, and the bond and mortgage at that time, was to convey to the plaintiff the lots in fee, free from all incumbrances except said mortgages and the lease. These several acts were to be performed at the same time, and the *319obligations of the parties, in respect to them., were therefore mutual and dependent. Gardiner v. Corson, 15 Mass. 500; Grant v. Johnson, 5 N. Y. 247; Holmes v. Holmes, 9Id. 525; Beecher v. Conradt, 13 Id. 108.
¶3Ordinarily, it is incumbent on each party to an agreement creating mutual and dependent obligations, to perform, or tender a performance, on Ms part, in order to put the other party in default. There may be circumstances, however, which will excuse a party from such performance, and enable him to take advantage of the default of the other party, although he has not performed, or offered to perform, on his own part. A tender of performance need not be made when it would be wholly nugatory. For example, if the vendor in the present case had expressly notified the plaintiff, before September 21, that he would not convey, and therefore the plaintiff need not tender the payment "which the agreement required to be made on that day, he would have been excused from making the tender, as it would have been an idle ceremony. In like manner, the conceded. inability of the vendor to perform, excuses a tender of performance by the vendee.
¶4In the present case the vendor was unable to perform his agreement, for the reason that the premises were incumbered with the liens for taxes and assessments admitted in the answer. By his agreement he was not only to convey a title in fee simple, but he was to convey and assure it free from all incumbrances except as therein specified, and the incumbrances referred to were not within the exception. The existence of the incumbrances, at the time fixed in the agreement for the execution and delivery of a deed, was a breach of the agreement on his part, which put it out of his power to perform, and excused the plaintiff from tendering payment. See Holmes v. Holmes, 12 Barb. 137; affirmed in 9 N. Y. (5 Seld.) 525.
¶5The averment in the answer that the defendant would have discharged the incumbrances on September 21, if the plaintiff had been ready and willing to perform on his part, is wholly immaterial. The act of conveying the premises, free from all incumbrances, was to be concurrent with that of the payment of the purchase money. The plaintiff was under no obligation *320to pay his money to the vendor, and trust to a remedy by action for damages in case the vendor failed to remove the incumbrances. It was the duty of the defendant to have caused them to be discharged before the time arrived at which he had stipulated to convey.
¶6Equally immaterial is the averment that the defendant would have discharged the incumbrances on September 31, if the plaintiff had objected to perform for the reason that they were unpaid. By objecting to the deed, on the ground that it was subject to the lease, the plaintiff did not waive the objection that the premises were incumbered, nor subject himself to the alternative of accepting a deed subject to the incumbrances, or forfeiting what he had paid. This view of the case is not in conflict with the cases cited by the appellant’s counsel. In Boardman v. Sill, 1 Campb. 410, and White v. Gainer, 3 Bing. 33, a bailee of goods was held to have waived his lien for charges by claiming to be the general owner. In Winne v. Reynolds, 6 Paige, 407, n., and McWhorter v. McMahan, 10 Id. 386, bills were filed for a specific performance. In the former there was a trifling incumbrance, known to the vendee when he contracted, easily removable, and time was not of the essence of the contract. In the latter, the incumbrance was merely nominal. In Carman v. Pultz, 31 N. Y. 547, 551, there was a defect in the form of the deed, which could have been remedied if it had been pointed out. These cases have no bearing upon the question before us.
¶7I think the judgment should be affirmed.
¶8All the judges concurred, except Morgan- and Peckham, JJ., not voting.
¶9Judgment affirmed, with costs.