#### S. A. Spooner and H. D. Lewis, Appellants, v. George Cross, Appellee.

1 Specific performance. Where a vendor agreed to furnish an abstract showing good and merchantable title and a part of the land was subject to a mortgage, a conditional release of the mortgage did not render the title merchantable so as to entitle the vendor to specific performance, in the absence of evidence that the conditions had been performed.

*2*Abstract; condition precedent. The performance of a condition that the vendor of land shall furnish an abstract showing good and merchantable title, is precedent to the vendee’s obligation to pay the price.

3 Duty of vendor. The statement of a vendor who agreed to furnish an abstract showing good title, that he had a release of land from a mortgage, did not relieve him from the obligation to have it recorded and exemplified on the abstract.

*Appeal from'Mills District Court.*— bloN. N. W. Macy, Judge.

Saturday, April 8, 1905.

ActioN for specific performance. Relief denied, and plaintiffs *appeal.*

Affirmed.

*CochA'am & Egan,*for appellants.

*Genung &*Genung, and *E. B.*Woodruff, for appellee.

Ladd, J.

On the 24th day of January, 1903, the parties hereto entered into a written contract by the terms of which defendant agreed to purchase 560 acres of land in Saline county, Mo., for the consideration of $20,400, and a grain and milling plant valued at $16,000. No time was fixed for performance, but on'February 27th, in pursuance of an oral understanding, title to 480 acres of land was con*260veyed to defendant, and be deeded to plaintiffs tbe grain and milling plant, and paid $15,200 in casb. It was then agreed tbat plaintiff should fix up tbe abstract on tbe remaining 80 acres in 30 days. On tbe 28tb of March there was talk over tbe telephone to tbe effect tbat tbe deal should be closed by tbe middle of tbe following week. Whether this delay was at defendant’s request, or upon tbe suggestion, of plaintiffs, is immaterial, for in either event tbe latter were not then in a situation to perform. At tbat time tbe 80 acres was covered by a mortgage of $8,500 to tbe Union Central Life Insurance Company. An objection bad been made thereto, but tbe abstract, after being corrected in other respects, was returned to defendant unchanged as to tbe mortgage. In another conversation over tbe telephone on tbe 6th of April, defendant was assured tbat tbe release of tbe mortgage bad been procured, but declined to complete tbe sale, owing to reasons stated in a letter of tbe same date in which be returned tbe abstract. Therein be indicated tbe accuracy of tbe abstract, except tbe release of tbe mortgage, and added:

> Tour letter states tbat there has been a release procured but tbat is not satisfactory. When we were in Glen-wood I gave you thirty days to fix tbe matter up.,, Tou let tbe time elapse. I tben gave you till tbe middle of last week and still you let the time pass, so I will send you tbe abstract back and call tbe deal off on tbe 80 acres. It is getting so late in the season.

But they bad not tben procured tbe release. It was still in tbe bands of tbe company’s agents, and was not obtained by plaintiffs until April 9th, upon payment of $2,000. Even tben tbe release was executed

> only upon tbe express condition precedent tbat no other lien has attached to the remaining part of said mortgaged premises described therein, and tbat the remaining portions of tbe premises or any part thereof, since tbe date of tbe said last deed of trust above described, and tbat no interest, legal or equitable, has been acquired in any part of said mortgaged premises since the date of - said last deed of trust. If any *261such interest has been acquired therein, then this release shall not take effect. The object of this stipulation is, that the release o-f said portion of said mortgaged premises shall not imperil or in any way effect the interest of said mortgagee in the remainder of said premises.

No evidence, by abstract or otherwise, showing the condition of the title of other land covered by the mortgage, was ever presented, nor was an abstract indicating the release of the land in controversy.

From this statement of facts, it is plain that plaintiffs are not in a situation to demand specific performance. They agreed “ to furnish an abstract showing good and merchantable title ” to the land. This was a condition precedent to payment by defendant. This objection was not waived, for it was the main ground of defendant’s refusal to proceed farther, and did not relieve the plaintiffs of their obligation to tender an abstract such as agreed within a reasonable time, and before insisting on performance by defendant. *Lessenich v.*Sellers, 119 Iowa, 314.

The mere statement that they had a release, especially when untrue, did not relieve them from having this appear of record and exemplified in the abstract.

Completing tire contract with respect to other lands was upon the express understanding that they should perfect the title to this tract. Nor was a merchantable title proven at the trial. The release of the mortgage was conditional upon no liens having attached to the land not released therefrom since its execution, and *“*that no interest, legal or equitable,” had been acquired therein. The record contains no showing that these conditions had been met. Indeed it would be somewhat difficult to free this tract from all risk, as the language of the release does not limit the equitable interest contemplated to matters of record. For all that appears, the release of the mortgage may be ineffectual as to the $6,500 unpaid.

*262Tbe decree denying specific performance was right, and is *affirmed.*