The opinion
Learned, P. J.,
(dissenting.) The complaint alleges that by a writing dated January 14, 1885, signed by plaintiff and defendant Edwin L. Patrick, the said defendant contracted to sell a certain lot of land to plaintiff for a certain price, and that a copy of the agieement is annexed, marked “A;” that subsequently plaintiff caused the land to be surveyed, and a description made, and that the same was submitted to Patrick, and approved by him; and that it was agreed that the land should be conveyed by that description. The answer of defendant Patrick admits that at the time of the execution of the agreement referred to in the complaint he owned the land; that the agreement referred to in the complaint was signed by himself and plaintiff, and was similar to Schedule A, but he cannot state whether said copy is an exact copy of the agreement or not. He avers that by the terms of the agreement the purchase price was to be paid on delivery of the deed. He admits the making of the survey and the description, and avers that he and his wife did, on or before March 1, 1885, execute and tender to plaintiff a deed substantially according to said description. He avers that on, and for a long while prior to, the 1st of March, 1885, and at all times, he was ready and willing and able to perform said agreement with plaintiff, until plaintiff failed and refused to perform it on her part, and that she failed to perform it on her part for many weeks after March 1, 1885. On the trial the original contract was put in evidence, and its execution admitted.- It agrees with Schedule A, attached to the complaint.
*582 How, upon these pleadings, I do not see how it can be in the power of Patrick to claim that a valid written contract was not made. His defense rests on his readiness to perform, and the refusal of plaintiff to perform on her part. It is true that the contract consists of an agreement, in an ordinary form, for Patrick to sell, and plaintiff to buy, the land at a certain price. This is signed by plaintiff. Below it is the following: “I sign this contract, with the consideration that you agree to build all of the line fence, ” etc. At the foot is the signature of Patrick. The plaintiff alleges that she made this contract, giving a copy of the whole, including the clause underneath her signature. Patrick admits the making of the contract, although he cannot say whether the schedule is a correct copy. The original is proved to have been executed, and to correspond with Schedule A. Patrick’s answer is an admission that the written contract was executed. He evidently includes in that admission the paragraph between plaintiff’s signature and his own. So that we have the statement of both the parties that this contract (probably including that paragraph) was their written agreement. I think it is not open for Patrick, on these pleadings, to show that no contract was made. That was not a matter in issue between the parties. Patrick admitted the contract; averred that he had made and tendered a deed in compliance therewith, and that plaintiff had refused to perform. Whether or not he could have successfully denied the execution of the contract by both parties, certainly he did not. And it is not in his power at this time to say that the evidence failed to prove a contract. It is not necessary, therefore, to consider whether the circumstances testified to on the trial established a binding agreement between the parties. The defense of defendant Patrick, as set forth in his answer, is the failure of plaintiff to perform a contract which he says he was willing and offered to perform.
If, then, this written contract was binding, its terms were that Patrick and his wife were to execute and deliver the deed to plaintiff on or before March 1, 1885, at which date the money was to be paid. * The defendant Patrick and his wife executed the deed about February 24th. Ho doubt existed in their minds at that time that Patrick had contracted in writing to sell the land to plaintiff; and he supposed that; unless plaintiff paid him the money by March 1st, the contract was at an end, and he might make a better bargain if he could. It is evident from the letter of Patrick that, in his view of plaintiff’s rights, she “slept on her privilege, ” and, by neglecting to tender him the $200 on or before March 1st, lost all claim to the land. In that belief he proceeded subsequently to sell it to Mrs. Tremain, one of the defendants. The delivery of the deed and the payment of the money were to be contemporaneous. If either party, therefore, would put the other in default, he must tender performance, and demand performance from the other. Time is not generally regarded in equity as the essence of the contract. Duffy v. O’Donovan, 46 N. Y. 223 ; Hubbell v. Van Schoeing, 49 N. Y. 326 ; Edgerton v. Peckham, 11 Paige, 352 . From the time of making the contract equity regards the vendee as the owner of the property, and the vendor as a creditor for the purchase money, with security therefor on the land. Lewis v. Smith, 9 N. Y. 502 . Hence it comes that, as the vendor is treated as equitably a mortgagee, the vendee is not to lose his equitably mortgaged land by mere non-payment of the debt at the law day. The rules on this point are well settled in Webb v. Hughes, L. R. 10 Eq. 281, where it is said: “A purchaser may by the terms of the agreement make time the essence of the contract, but it requires a very strict stipulation to effect that object. ” 3 Pom. Eq. Jur. § 1208; 2 Story, Eq. Jur. § 776. How, it appears from the testimony of defendant Patrick that he heard that plaintiff and her husband were sick; then that they were getting better; and it came so near the 1st of March that he felt anxious about the money. He did not, however, write to plaintiff, who was then in Hew York, nor did he tender, or cause to be tendered, to her the deed. His daughter, *583 about the 25th of April, told him that plaintiff considered the contract good, and that she (the daughter) was afraid he would have trouble. He said he would risk all trouble; and on the 30th of April he conveyed the land in question to defendant Mrs. Tremain. It is evident, then, that defendant Patrick put himself on the ground, as he did in his answer in this case, that because plaintiff had not tendered him the money on or before March 1st he was free from all obligation to her. We do not think this was correct. At the very time when he delivered the deed to Mrs. Tremain the plaintiff was staying at the next house to him. He might have tendered plaintiff the deed and demanded the money without any difficulty.
We think that the finding of the court that defendants Mrs. and Mr. Tremain had notice of plaintiff’s contract with Patrick before the deed was delivered to Mrs. Tremain is sustained by the evidence. Mrs. Tremain drew up the deed to herself from the dictation of Patrick. He read from the deed which he had executed to plaintiff, and told her what that deed was. She said she was astonished, and that, if plaintiff had any rights, she (Mrs. Tremain) would have nothing to do with it. Patrick said plaintiff had none, and Mrs. Tremain said she would take his word for it. A letter of Patrick to Mrs. Tremain of March 12th refers to the contract. It is not necessary to repeat the other testimony tending to show either actual notice or facts sufficient to put Mr. and Mrs. Tremain upon inquiry. They did not inquire of the persons who could have told them,—their near neighbors and old friends, plaintiff and her husband. Reed v. Gannon, 50 N. Y. 349 . In my opinion, the judgment of the court below was right, and should be affirmed, with costs.