Berryhill v. Byington

10 Iowa 223 | Iowa | 1859

Stockton, J.

The answer of the defendant avers that the notes sued on were given as part consideration for a tract of land which the plaintiff by his obligation in writing bound himself to convey to the defendant upon the payment of the notes, and that the plaintiff had never at any time executed or delivered, or offered to execute or deliver to defendant any deed of conveyance for said land or any part thereof.

The demurrer to this answer was improperly sustained. Where the conveyance is to be executed upon the payment of the purchase money, the two acts are so far dependent, that to entitle the plaintiff to recover, he must show a performance or offer to perform on his part, by the tender of a conveyance, or an offer to convey on the payment of the purchase money. See School District v. Royers, 8 Iowa, 316 1859 ; 2 Hill. Vendors, page 71.

Judgment reversed.