As a general rule, the mutual engagements of the parties will be considered dependent on each other; and either must, (unless discharged therefrom by the other,) (x) perform his liabilities before he seeks to enforce his rights under the contract. So that, on the one hand, the purchaser cannot sue upon the agreement without tendering the conveyance (y), and the sum, (if any,) due in respect of the purchase-money and interest (z); - (unless the vendor have neglected to furnish or verify (a) his abstract of title, or have shown a bad title (b), or, by conveying away the estate (c) or otherwise (d), have disabled himself from completing the contract:) - and, on the other hand, it has been held that the vendor, if he sue merely upon the agreement and not upon some security which he has taken for the purchase-money (e), must have executed, or offered to execute (f), or, according to a modern decision (g), have been ready and willing to execute a conveyance in the terms of the contract; the rule, in the absence of stipulation, being, that the purchaser must prepare and tender the conveyance.

Performance of contract on part of plaintiff how far necessary to support action.

(t) Howard v. Shaw, 8 Mee. & W. 118.

(u) Doe v. Sayer, 3 Camp. 8.

(w) See 1 M. & W. 700; Eight v. Beard, 13 East, 210; and see Doe v. Caperton, 9 Car. & P. 112; Doe v. Chamberlaine, 5 Mee. & W. 14.

(x) See Jones v. Barkley, Doug. 659; Laird v. Pirn, 7 Mee. & W. 474: if the agreement is by deed, the discharge must also be under seal; see 19 L. J.,N. S., Exch. Ch. 328.

(y) See Knight v. Crockford, 1 Esp.190

(z) Sug. 375.

(a) See Berry v. Young, 2 Esp. 640, n.

(b) See Seaward v. Willock, 5 East, 202.

(c) Lovelock v. Franklyn, 8 Q. B. R. 371; Knight v. Crockford, 1 Esp. 190.

(d) See Caines v. Smith, 15 M. & W. 189; Short v. Stone, 3 Dow. & L. 580; 5. C, 8 Q. B. 358.

But, of course, the contract may be so worded as to show that the mutual stipulations were, to a certain extent, independent; it being a general rule, that if a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act, before performance: for it appears that the party relied on his remedy, and did not intend to make the performance a condition precedent (h): for instance, where a vendor agreed that he would, within one month from the date of the contract, or from being required so to do, deliver an abstract of title and deduce a clear title, and the purchaser agreed to pay part of the purchase-money down, and the residue on or before four years after date, with interest payable half-yearly on certain fixed days, it was held, that the vendor could sue for interest which had become due, although no abstract might have been delivered (i).

(e) See Moggridge v. Jones, 14 East, 486; Spiller v. Westlake, 2 B. & Ad. 155.

(f) Philips v. Fielding, 2 H. Bl. 123; Laird v. Pirn, 7 M. & W. 474.

(g) Poole v. Hill, 6 M. &W. 835, 841; and see Chitty on Contracts, last ed. 273, and Thames Haven Company v. Brymer, 19 L. J., N. S.,

Exch. Ch. 321; but see Sug. 261, where Poole v. Hill is not cited.

(h) Pordage v. Cole, 1 Wms. Saund. 320 b, n.; see 6 C. B. 114; Mattock v. Kinglake, 2 Per. & Dav. 343; Porcher v. Gardner, 14 Jur. 43; and Thames Haven Company v. Brymer, 19 L. J., N. S., Exch. Ch. 321, 328.

(i) Dicker v. Jackson, 6 C. B. 103, 114; and see Sibthorp v. Brunei, 3

And an actual refusal by the vendor to execute the conveyance, has been held to be no defence at Law to an action by him upon a note or other security given by the purchaser for the purchase-money (j). It seems to be the better opinion, that, even where there is no condition respecting the forfeiture of the deposit, and the purchaser by his own default loses his right to enforce the contract, he has no right to recover his deposit, and will not acquire such right by reason of the estate being subsequently sold by the vendor (k).