By the COURT. — The “guaranty” of Garnett was to make to the assignors of the plaintiff a title to the mining claims enumerated in the receipt. The circumstances go to show that the title was to be such a title as Garnett expected to obtain, and did ultimately obtain, from Wakelee. If was the duty of Garnett to convey that title within a reasonable time after he obtained it.
The demand made by the plaintiff, that Garnett execute the deed (Exhibit “B”) prepared by the plaintiff, was a sufficient demand to put the defendant in default for the purposes of this action, because it was not the duty of the plaintiff to prepare and tender a deed to be executed, and even though the defendant might lawfully refuse to execute a deed such as the one presented, it was, nevertheless, his duty to cause to be prepared and to execute to the plaintiff such a deed as would be sufficient to vest in the plaintiff the Wakelee title to the mining claims referred to. Order affirmed.