¶1The court are of opinion that the true legal construction of the agreement on which this bill is founded is, that the plaintiff should not only convey the house to the defendant, but should also clear it of the tenant, as soon as the 1st of October 1858; that the defendant, on that day, should have the actual occupation of the house secured to him. It seems to us that the 1st of October is as plainly the day on which the house was to be clear of the tenant as it was the day on which the conveyance thereof was to be made by the plaintiff, and payment therefor to be made by the defendant. The house which the plaintiff engaged to convey was a house cleared of the tenant; and the defendant was not bound to pay the consideration and take a deed of a house in which there was a tenant, who had disregarded notice to quit, was wrongfully holding over, and might, by protracted litigation, keep the defendant out of possession for months, if not for years.
¶2The construction which we give to the agreement of these parties renders unnecessary any decision or discussion of other questions which were raised at the bar. Bill dismissed.