Murray, C. J., concurred.
The material objections to the recovery in this case will be separately considered.
1. The paper introduced to show a payment to defendant by the plaintiff’s assignor would have been insufficient alone, if it had been objected to on the trial, but the want of such objection is equivalent to an admission of its sufficiency. Courts will not permit a party to give an apparent acquiescence which will operate to mislead and entrap his adversary. If the objection had been made in proper time, the legal presumption is, that the plaintiff would have supplied the necessary evidence, at least he would have had the opportunity of doing so.
2d. The want of evidence of a demand of a conveyance seems tobe unsupported. The record discloses a refusal in writing on the part of the defendant, which rvas not objected to, and this mast pre-suppose a demand made. It is urged, that to make the demand complete a deed should have been tendered to the defendant for his execution. This would be necessary in a common law action upon a bond or agreement to make titles. But in equity, for specific performance, such a technical requisition will not be considered indispensable, especially where the party refuses to make title, and at the same time gives the reason for his- refusal, which is other than that of requiring a deed to sign.
3. The same reasoning, however, cannot be applied to the objection that no tender is proved to have been made of the purchase money remaining due. This is of the essence of the contract, and there is nothing technical about it. To entitle the party to obtain a specific performance he must have performed on his part every essential of the agreement. It is not sufficient to meet this objection, to say that the defendant assigned a totally different reason fur his refusal. He may have done so, and yet the substantial reason may exist, and he is entitled to the benefit of it. It behooved the plaintiff to show himself not in fault, by proving each point necessary to establish the merits of his complaint. Without this he must fail, and especially where his case belongs to a class to which Courts of Equity always give the nicest consideration, and are chary of granting relief.
Upon this last ground the decree is reversed, and the canse remanded.