#### Catherine M. Hewison, Respondent, *against*Mary Hoffman, Appellant.

(Decided April 1st, 1889.)

Where, at the time fixed for the performance of a contract to convey property, the same is incumbered, the vendee is excused from attending and tendering performance,and may rescind the contract and recover his deposit and damages for the breach. The fact that the vendor offers to allow the amount of the incumbrances to be deducted from the cash payment to be made will not excuse the default, where the amount of the incumbrances exceeds the amount of such payment. And a subsequent offer by the vendee, to attend at a time and place named to complete the contract, is no defense to an action for the breach, where, before the day named, the vendor has sold the property to a third person.

*177Appeal from a judgment of this court entered upon the decision of the judge at a trial without a jury.

The action was brought to recover $100 deposited with or paid to defendant by plaintiff on the execution of a contract for the sale of real estate by defendant to plaintiff, and for $186 expended by plaintiff in examining title. The complaint averred that defendant had failed to perform her contract. The answer alleged non-performance on plaintiff’s part. • Upon trial by the court, a jury having been waived by the parties, the judge found for plaintiff for the amounts claimed by her, and judgment for plaintiff was entered thereon. From the judgment defendant appealed.

*Joseph J3. Newbury er,*for appellant.

*Lewis*Johnston, for respondent.

J. F. Daly, J.

On the day named in the agreement of the parties for the delivery of the deed, the vendor, the defendant, was unable to perform because ,of the incumbrances upon the property which she was to convey to plaintiff. The existence of those incumbrances at the time fixed in the agreement for the closing of the title, was a breach of the agreement on defendant’s part, which put it out of her power to perform, and excused .the plaintiff from tendering payment *(Morange*v. Morris, 3 Keyes 48). Plaintiff was therefore not in default in not attending on the day named with the money or mortgage. By reason of the breach by defendant, she was then entitled to recover back the $100 paid on signing the contract, and the $186 expended for searching title,—not required to pay or tender anything to defendant then nor subsequently. The defendant did, at the time named, offer to allow the amount of the incumbrances to be deducted from the cash payment to be made by plaintiff, but as they exceeded the amount of such payment, that offer did not meet the difficulty, so that there could not be any arrangement to that effect between the attorneys which would bind the plaintiff.

*178The plaintiff’s attorney asked for an adjournment, which the defendant’s attorney refused. Some days after, the plaintiff notified defendant by letter that she would attend at the office of the latter’s attorney at a day and hour named to complete the contract. Defendant sold the property on or before the day named to another party, and did not attend, and never offered the plaintiff the title which she was bound to give under the contract. No "point can therefore be made as to the sufficiency-of the alleged tender by plaintiff on that day, because none was necessary then nor before.

The judgment should be affirmed, -with costs.

Van Hoesen and Allen, JJ., concurred.

Judgment affirmed, with costs.