Performance less than substantial performance - Party in default seeking to enforce contract, A contract for the sale of realty or an interest therein, is not performed substantially if the performance which is tendered is substantially and materially different from that which is provided for by the terms of the contract.1 Substantial performance does not exist if there is a defect in the title,2 including a defect in the title to any substantial or material part of the realty agreed upon.3 If a tract of land is sold which is bounded by a public street or road, failure of title to a part of the land which cuts off such tract from such road prevents substantial performance.4 Under a contract for the sale of four acres of land, including a residence, a failure of title to a quarter of an acre was said to prevent substantial performance if such tract lay between the house and the public road, and if it was so situated that persons could look from such tract into the windows of the residence.5 If the contract provides for the sale of a lot which is sixty feet wide by one hundred and ninety-five feet deep, and which is bounded by a street, failure of title to a twenty-foot strip along the street prevents substantial performance.6 Under a contract for the sale of forty-one acres, failure of title to seven acres which cuts the remaining tract off from a public road, prevents substantial performance.7 A contract for the sale of nearly seven hundred acres of land, is not performed substantially if the title to more than two hundred acres is substantially defective, although such two hundred-acre tract is separated from the rest of the land by a public road and although all the improvements are upon the tract, title to which is marketable.8 A contract to sell a freehold is not performed substantially if about a sixth of the land is copyhold.9 A contract to convey a tract of land in fee, is not performed substantially by an assignment of a lease of such realty for a term of four thousand years.10 Under a contract by which a city agrees to buy a tract of one hundred and fourteen acres to be used as a reservoir, for storing water for the water supply of the city, failure of title to ninety-two acres prevents substantial performance even if the tracts in question belonged originally to different owners.11 Under a contract for the sale of seven hundred acres of land, a failure of title as to twelve acres was held to prevent substantial performance, if such twelve acres were underlaid with brick clay and there was a probability that the owner of such land might construct a brick kiln and buildings on such land.12

9 Edison, etc., Electric Co. v. Navigation Co., 8 Wash. 370, 40 Am. St. Rep. 910, 24 L. R. A. 315, 36 Pac. 260.

10 Fuller-Warren Co. v. Shurts, 95 Wis. 606, 70 N. W. 683.

1 England. Arnold v. Arnold, L. R. 14 Ch. Div. 270; Hick v. Phillips, Prec. Ch. 575; Drewe v. Corp, 9 Ves. Jr. 368.

Alabama. Boylan v. Wilson, - Ala. - , 79 So. 364

Michigan. Connor v. Buhl, 115 Mich. 531, 73 N. W. 821.

New Jersey. New York Life Ins. Co. v. Gilhooly, 61 N. J. Eq. 118, 47 Atl. 494.

New York. Acme Realty Co. v. Schinasi, 215 N. Y. 495, L. R. A. 1916 A, 1176, 109 N. E. 577.

Virginia. Jackson v. Ligon, 30 Va. (3 Leigh) 161.

2 England. Arnold v. Arnold, L. R. 14 Ch. Div. 270.

Alabama. Boylan v. Wilson, - Ala. - , 79 So. 364.

Illinois. Baker v. Baker, 284 111. 537, 120 N. E. 025.

New Jersey. New York Life Ins. Co. v. Gilhooly, 61 N. J. Eq. 118, 47 Atl. 494.

Virginia. Jackson v. Ligon, 30 Va. (3 Leigh) 161.

3 Arnold v. Arnold, L. R. 14 Ch. Div. 270; New York Life Ins. Co. v. Gilhooly, 61 N. J. Eq. 118, 47 Atl. 494; Jackson v. Ligon, 30 Va. (3 Leigh) 161.

4 Arnold v. Arnold, L. R. 14 Ch. Div. 270; New York Life Ins. Co. v. Gilhooly, 61 N. J. Eq. 118, 47 Atl. 494.

A contract to sell realty which implies a marketable title, is not performed substantially if windows and porticoes project into the street so that the city may require them to be removed at any time, and if such removal will be expensive and cause a substantial loss to the purchaser, although they have been constructed by permission of the city subject to such right of removal.13

5 Perkins v. Ede, 16 Beav. 103.

6 New York Life Ins. Co. v. Gilhooly, 61 N. J. Eq. 118, 47 Atl. 494.

7 Arnold v. Arnold, L. R. 14 Ch. Div. 270.

8 Jackson v. Ligon, 30 Va. (3 Leigh) 161.

9 Hick v. Phillips, Prec. Ch. 575. 10 Drewe v. Corp, 9 Ves. Jr. 368.

11 North Avenue Land Co. v. Baltimore, 102 Md. 475, 63 Atl. 115; Vick-ers v. Baltimore, 102 Md. 487, 63 Atl. 120.

12 Knatchbull v. Grueber, 1 Madd. Ch. 153.

13 Acme Realty Co. v. Schinasi, 215 N. Y. 405, L. R. A. 1916A, 1176, 100 N. E. 677.

A contract for the sale of realty is not performed substantially if the grantor's wife refuses to release dower.14 A contract to convey realty subject to certain encumbrances is not performed substantially by offering to convey with greater encumbrances, but with a covenant in the deed to reduce them to the amount contracted for.15