The opinion of the court was delivered by
JOHNSTON, J. :
The first point to which our attention is called is the insufficiency of the petition. It contained no averment that a deed conveying a good title to the land, or that any deed, was ever executed by the Gabes to the purchasers, or that before the commencement of the action or at any other time the Gabes had tendered the purchasers a conveyance of the premises purchased, nor did it contain any excuse for the failure to tender a deed. The obligations of the contract are mutual and dependent, and before one party can enforce performance it must appear that he is not himself in default. The Gabes might have enforced the collection of all the installments preceding *650the last one without haying tendered a conveyance of the property sold, but as no steps were taken to collect the several installments until after the last one was due, a single cause of action exists for the collection of the purchase-money, and payment cannot be compelled until they have complied or tendered compliance with the obligations resting upon them. In a somewhat similar case it was said that —
“All the parties to the papers must perform at the same time, neither being under any obligation to trust the other. As it appears that Elledge has neither delivered nor tendered a deed, he cannot maintain an action for the purchase-money embraced in the note sued on.” (Iles v. Elledge, 18 Kas. 296.)
In a later case of the same character and where the agreements of the parties were held to be mutual and dependent, it was said that —
“Neither party can put the other in default, save by a performance or an offer to perform on his part. No action can be maintained on the note, not even to adjudge it a lien, until the plaintiff has offered to convey the premises. . . . At any rate, before either party can justly summon the other into court and impose the expense and annoyance of a suit, he should at least tender performance on his part.” (Morrison v. Terrell, 27 Kas. 326. See, also, Close v. Dunn, 24 Kas. 372; Sanford v. Bartholomew, 33 id. 38.)
*• performance; deed?1’01
*651s’ petition;6 demurrer. *650It is well settled in this state that a vendor cannot enforce a contract like the one in question and collect the purchase-price of the land which he has agreed- to convey without alleging and proving that he has performed his own obligation by making and tendering a deed of conveyance. As the delivery or tender of a deed is a prerequisite to compel a performance, allegations of *651a tender or offer of performance in the petition were essential; and, as the petition of tlie plaintiffs below wholly failed in this particular, no right of action was shown, and the court committed error in overruling the demurrer.
£$ro?r<jfn0 averments, The demurrer to the evidence should have been sustained for the same reason. No proof of performance was offered, nor was any excuse for ^ie want of it shown. The allegations of the answer did not supply the essential averment of tender, nor did they constitute a waiver of such averment and proof.
It is contended that the tender of a deed was unnecessary because the proof showed that the defendants below — the purchasers — had repudiated the contract and declined to carry out its provisions before the commencement of the action. One of the defendants testified upon rebuttal that at an interview with the Gabes prior to the beginning of the action he told them that the defendants “had concluded to let the land go back.” It does not appear that he had authority to speak for his associates. A single remark of this kind by one of the 14 purchasers is hardly sufficient to show that a tender would have been declined, and is wholly insufficient of itself to constitute a waiver.
The plaintiffs in error contend that the delay of the Gabes in attempting to secure performance, or in applying to the court for relief, amounts to waiver of their rights under the contract, and to an acceptance of the forfeiture. It is true that, where time is made of the essence of the contract, a party to obtain specific performance must have acted without unreasonable delay. In this case, however, the conduct of the parties and the circumstances of the case indicate *652that the Cabes had waived the payment of the money upon the day it was due, and that they and the other parties had treated the contract as still in force. The purchasers were given possession of the premises about the time of the purchase, and they continued in possession of the land until after the present action was brought. The testimony further tends to show that the purchasers had obtained an extension of time within which to make payment, and although that time had expired the Gabes were still endeavoring to secure the payment of the money. Under these circumstances, if a tender had been made or waived, the Gabes ■would be' entitled to a specific performance of the contract.
*653*• mgme'St *652The judgment that was rendered in the case is not sustained either by the pleadings or the testimony, and this objection is of itself sufficient to require a reversal and a new trial of the cause. Under its terms the purchasers are required to perform specifically, and to pay the full purchase-price of the land without obtaining the title thereto, or any credit for the value of the same. The obligations of the contract, as we have seen, -were mutual, and no judgment should have been rendered requiring performance by one of the parties without also requiring it of the other. Instead of that, the judgment awards to the Gabes the full purchase-price of the land, and permits them to retain the land which represents the purchase-price. To, entitle the plaintiffs below to judgment for specific performance, it devolved upon them to allege and prove a tender of performance. Unless a tender has been waived, they must allege and show the tender of a deed conveying a good title, and the tender should be kept good until the judgment is rendered. In this case there was no proof as to the ability of the Gabes *653to convey the title which they had contracted to convey, nor any showing as to the condition of the title when the judgment was rendered. There being no inquiry or finding concerning the title or the ability of the Gabes to convey, this court is without power to direct any modification of the judgment respecting title. The error in the judgment is not a mere technical defect in form, but it is a substantial one in failing to protect the rights of the purchasers, and in adjudging a specific performance without providing for a conveyance to them of the property for 'which they were required to pay. The error in the final judgment is reviewable in this court, although no exception was taken to the same, nor any motion to correct the error in the trial court.
The remaining questions that have been discussed upon the admission of testimony and upon the instructions of the court have been examined, but we find nothing in them whicli requires special comment.
The judgment of the district court will be reversed, and the cause remanded for another trial.
All the Justices concurring.