The opinion of the Court was delivered by
The decree of the circuit court was interlocutory and conditional. The respondents were required to pay, hy a given day, certain moneys into comt to the credit of the judgment on which the land in contest has since been sold; in default of which, the conveyance recited in the complainant’s bill was decreed to be fraudulent and void. The object of the condition was to reaсh the equity of the cause without, unless as a last resort, disturbing the conveyance betwixt the parties to it. In default of performance the decree was to stand as an absolute one; but who was to judge of the fact? Certainly not a court of common law; nor indeed any other than the court which pronounced the decrеe, for none else had jurisdiction of it. Had the condition been performed to the letter, it would still have required its intervention to restrain proceedings on the judgment against the land in contest. What did the defendant in this ejectment offer to prove? Not a tender of рayment in the terms of the decree, but a tender to the comрlainant’s solicitor who claimed to receive it, not as a compliance with the decree and consequent exonеration of the particular land, but as a general payment in case of all the lands bound. The pretension of the solicitor wаs unjust; but why did not the respondent pay directly to the clerk without consulting thе solicitor whose sanction was immaterial? His course was a сlear one. Payment into court would have given life to his conveyance without the concurrence of any one; and the court, being satisfied of the fact, would have enjoined from execution of the particular land. Further action by the court was indicated not only by the terms of the decree but by the requirements of the occasion. But the defendant did not offer to prove even a tender of performance
Judgment affirmed.