| Mass. | Jan 4, 1876
The objection that the tender of the deed by the plaintiff was not seasonably made cannot be sustained, and was not relied upon at the argument. But the discrepancy between the actual amount of the incumbrance upon a portion of the land which the plaintiff was tc convey and its amount as described in the contract raises a more serious question.
A portion of the land which the plaintiff was to convey subject to a mortgage of three cents and three quarters of a cent per foot proves to be subject in fact to a mortgage of four and one quarter cents per foot. It does not appear that the mortgage has become due, so that by paying the excess it would be in the power of the plaintiff literally to fulfil his contract, and give the exact title which he had bound himself to give. In a suit at common law, and in a case of mutual and dependent stipulations, where the plaintiff is himself unable to fully carry out the contract on his own part, he cannot compel the defendant to accept an equivalent. The defendant is entitled to have what he contracted for. A purchaser will not be compelled to take a doubtful title, or one subject to incumbrances more onerous than those stated in the contract. The equivalent which the plaintiff offers is the payment of a sum of money into the defendant’s hands, under circumstances which mignt impose upon him the duty of holding it in trust, to be applied upon the mortgage at its maturity. But how