Asa B. Hogins versus Joseph Arnold, 15 Pick. 259

Shaw C. J. delivered the opinion of the Court. The Court are strongly inclined to the opinion, that, as the bond and deed were executed together as parts of one transaction, the bond constituted a defeasance to the deed, and the remain ing interest of the plaintiff was that of a mortgager; and it seems to have been so considered by the plaintiff, by recording it.

If the interest of the plaintiff by force of this bond, was that of a mortgager, it was that of a mortgager before condition broken, and as the condition never was broken, the estate was defeated at law, and no release or reconveyance was necessary to revest the estate in the mortgager. Saving the condition made the deed void ab initia. Another consequence of this view is, that if Hogins conveyed away his estate, though after demand on the defendant, he had no longer any interest in the bond, because, being in the nature of a condition and defeasance to the deed, it passed with the estate.

If so, the replication afforded no good answer to the plea, and the plea is a good bar. The rejoinder is probably a departure and so bad ; but if so, it operates as a general demurrer to the replication, and that being bad, the plea stands as a good bar, and the defendant is entitled to judgment. But we have not thought it necessary to decide this question, because we are all of opinion-, that the other plea is a good bar to the plaintiff’s action. There are some peculiarities in the phraseology of this bond, the condition of which is, that if after paying the note and indemnifying &c. and after demand &c.

Arnold, his executors &c., shall refuse to execute a quitclaim, the bond shall be valid and good, otherwise void. We take the legal effect of the condition to be, that of a bond in common form, conditioned, that if the obligor, or his heirs or assigns, that is, the person holding the legal title, shall convey in the manner stated, the bond shall be void. A deed therefore, by an assignee holding the fee, or other estate to be conveyed, and competent to convey by deed, so that his deed would vest the estate in the obligee, would be a good perform anee of the condition.

Now we think that the principle relied upon by the defendant is correct, and supported by the authorities, and may be thus stated : That where there is a bond, conditioned to convey an estate, to make a release, or perform any other act, at a particular day or on demand, and where it appears that performance on the particular day is not of the essence of the contract, a conveyance or release after the day, or on a second demand, accepted by the obligee as and for such performance, is in point of law a good performance, and saves the forfeiture of the obligation. Bond v. Cutler, 10 Mass. R. 419 ; Gage v.

Gannett, 11 Mass. R. 217. The acceptance by the obligee renders such subsequent performance equivalent to a literal and strict performance, and after such acceptance, the forfeiture is saved, and the obligee cannot claim the penalty. Here, by the terms of the condition, the conveyance by Starbuck, he being the assignee and holding the fee, and being of competent ability to convey by deed, had the same effect, as that of the defendant himself would have had, if he had not assigned.

Had the defendant himself so executed his deed on July 5, 1831, and the plaintiff had accepted it, we think he could not have relied upon an earlier demand and refusal, as a breach of the bond ; and therefore under the circumstances, the deed of Starbuck and the acceptance of it by the plaintiff, must be deemed to have the same effect. The defendant, in his second plea, sets forth such an assignment by himself to Starbuck, a release and conveyance by Starbuck to the plaintiff, and his acceptance of it.

The replication setting forth an earlier demand and refusal, does not avoid the plea, because it admits the subsequent conveyance, and that the plaintiff accepted it, as a performance. The rejoinder therefore tendered an immaterial issue, and though this was found for the plaintiff, it does not aid him. Judgment f?r the defendant.