The refusal of the plaintiff to complete his purchase because there was a lease on the premises, did not deprive him of the right to object to other incumbrances on the same property. Such refusal might have relieved the defendant from the necessity of tendering performance on his part, but did not relieve him from the consequences of not being able to give a good title of the premises at the time agreed on.
The incumbrances should have been removed before the time fixed for completing the contract. ([Lawrence v. Taylor, 5 Hill, 115, and cases cited.)
Performance on the part of the plaintiff was not necessary if the defendant was unable to perform; except in case the plaintiff sought to compel performance, (Wells v. Smith, 7 Paige, 22,) or to recover damages without rescinding the contract. As the defendant could not give a good title at the time agreed on, the plaintiff had a right to refuse to take the property, and to rescind the contract.
Judgment affirmed, with costs.
Clerke, Ingraham and Sutherland, Justices.]