Mr. Justice Scott

delivered the opinion of the court:

We regard the rights of the parties under the contract evidenced by the receipt as being merged in the written agreement of November 8, 1889. After the execution of that agreement Hutchinson and wife were purchasers in possession under a contract of purchase, and a suit in ejectment could not be maintained against them until they had in some manner made default in the performance thereof. Stow v. Russell, 36 Ill. 18; Kilgour v. Gockley, 83 id. 109; Chicago and Eastern Illinois Railroad Co. v. Hay, 119 id. 493.

The first thing in point of time required by this contract was that Imogene L. Hanchett should furnish an abstract showing title in her, as contemplated by that contract, namely, a title subject only to a mortgage securing a note for $1000, due one year after date, with interest at seven per cent, payable half-yearly, principal and interest payable on or before maturity, at the option of the payor. This was a condition precedent, with which she had to comply before the Hutchinsons were under obligation to do anything at all. Howe v. Hutchison, 105 Ill. 501.

Shortly after November 8, 1889, she did furnish an abstract, but it showed a trust deed on the property in favor of John W. Waugh op for $3000, and was objected to for that reason. She had placed this encumbrance on the property after its sale to the Hutchinsons without their knowledge.

The evidence tends to show that thereafter the Hutchinsons tendered her the $500 which they were to pay in cash, and requested that she close the matter up in accordance with the terms of her agreement, but that she refused to accept the same and then stated that she would not carry out the contract. The evidence shows that this tender has not been kept good. That is a matter of no consequence, as there was no occasion to make it until an abstract was furnished in accordance with the terms of the contract. Such an abstract never has been furnished.

In August, 1899, one Arnold, acting for appellee, offered to John Hutchinson a warranty deed for the property, signed by the then owners thereof, accompanied by an abstract of title to the lots certified to April 29, 1899, which still showed the Waughop trust deed for $3000. The debt thereby secured was evidenced by three notes of $1000 each. At the time of making the tender Arnold offered to surrender two of these notes and credit interest on the third to that time. The deed so offered recited that it was subject to an encumbrance of $1000. This was not a compliance with the contract in reference to furnishing the abstract. Appellants were entitled to an abstract certified down to the date of its delivery, or as near thereto as it could be certified in the orderly transaction of business. Further, this abstract showed a trust deed on the property securing three notes for $1000 each. It should have shown satisfaction of that instrument to the extent of two of the three notes by it secured, or should have been accompanied by an instrument, signed by Waughop, showing satisfaction to that extent. What authority Arnold had to deliver the notes does not appear, and it is not claimed that he made any offer or had any authority to have the mortgage satisfied pro tanto of record. At this time John Hutchinson, who from his testimony does not appear to have been a man of much business ability, referred Arnold to his attorney, but Arnold did not take the matter up with him.

The evidence does not show that appellants have ever been in default. The condition of the title, as shown by the abstract, has never been such that the Hutchinsons could have accepted a deed from appellee or his grantors as a substantial compliance with the contract. At all times since the execution thereof the amount secured by the trust deed on the property has exceeded the amount of the unpaid purchase money mentioned in the agreement.

On the trial counsel for appellee offered in open court to comply with the contract. This offer avails nothing and was not properly made in the presence of the jury, as the rights to be determined in the case are those that existed at the time suit was commenced.

It was error to instruct the jury to find for plaintiff.

The judgment of the circuit court will be reversed and the cause remanded.

Reversed and remanded.