#### John McCool, plaintiff, *vs.*David Jacobus, defendant.

1. If a vendor, on the day specified in the agreement for the completion of the sale, is unable for any reason to perform on his part, it cannot be insisted by him, that the time specified was of the essence of the contract; or that the omission of the purchaser to demand a deed on that day, will excuse the vendor performing, afterwards.

2. Under such circumstances, the time mentioned in the contract, for the delivery of a deed, is not, as respects the rights of the purchaser, an essential part of it; or if it is, performance by him on that day will be excused, by the inability of the vendor to convey a title free from all incumbrances. A demand of a deed therefore on a subsequent day will be sufficient, and entitle the purchaser to a performance of the, contract. An offer to execute the bond and mortgage agreed to be given, and to pay the balance of the purchase money, is unnecessary.

8. It is well settled that the vendee of property, under a contract to convey a title *free from all inemnlrances,*is not bound to take it, if, at the time performance is tendered, there are incumbrances existing upon the property.

4. Where, on the day when a vendor offered, and was willing to convey, the premises were in the actual possession of his tenants, for terms not then determined, and were also incumbered by assessments which were unpaid; *Held*that the purchaser was excused from performance on the day.

5. Where a portion of the premises were, at the time performance was tendered by the vendor, in the possession of a tenant who held the same without any prescribed term being fixed, but under a verbal agreement to surrender the possession, upon a sale being made; *Held*that although this arrangement was terminable at the option of the landlord, yet the tenant was a mere tenant at will, whose tenancy could not, without the exercise of such option, be terminated, except upon a notice of thirty days. That to terminate the tenancy, upon a sale of the premises, it was at least necessary that notice *116thereof should be given to the tenant; and that until such notice was given, there could be no termination of the tenancy. *Per*Monem., J.

6. Where a receipt for rent, given by a landlord, in January, 1866, acknowledged the receipt of the rent for the premises, in advance to the 1st of August, 1866; *Held*that proof of a parol agreement by the tenant, to surrender the possession upon a sale being made by the owner, was not competent evidence; it being in conflict with the written contract, contained in the receipt, and tending to vary it.

7. Such an agreement by a tenant, to surrender the possession, is not a covenant which will run with the land and enure to the benefit of the grantee ; especially without an express and separate assignment thereof from the lessor; and the grantor, after conveyance, could not remove the tenants for holding over, he then not having the reversion. And the grantee, without such assignment, would take the land burthened with tenures which would deprive him of the possession, or the power of obtaining possession, until the tenancy ceased.

*8.*Such an arrangement with a tenant is a mere personal privilege to his landlord, to enable him to regain possession, upon the happening of an event named, and he alone can exercise it. If he fails to exercise it, and conveys the title without a special assignment of the agreement with his tenant, the latter will be released, and cannot be disturbed until the end of his term.

(Before Monell, J. at special term,

January —, 1867.)

Oh the 17th of January; 1866, these parties entered into a written contract, whereby the defendant agreed to sell to the plaintiff six lots of land in this city. The consideration was $28,500. $250 was to be paid on signing the contract; a further sum ($7062.50) was on the delivery of the deed, and the residue to be secured by bond and mortgage upon the lots. The contract, after providing that the party of the first part (the defendant) should execute a proper deed for conveying the premises to the party of the second part, (the plaintiff,) in fee simple, free from all incumbrances, and deliver the same on the 20th. day of February, 1866, and that the deed and mortgage should bear the same date, contains the following clause: “ The said deed and mortgage to be delivered and the money paid at the office of Van Antwerp & James, hTo. 1, Park Place, Feb. 20, 1866, at 12 m.”

'On the 20th of February, 1866, the defendant attended *117at the office of Van Antwerp & James from eleven o’clock *A.*M. until three o’clock p. m. He executed and acknowledged the deed required by the contract, and was ready at the time and place to fulfill the contract on his part. The plaintiff did not go to the appointed place, nor did he, or any one on his behalf, perform the contract on his part. In March, or the early part of April, and some weeks after the 20th of February, the plaintiff told the defendant he wanted the title to the lots, and the defendant replied he would not give it, he wanted more money. The plaintiff further said, he was ready to take the title, to which the defendant replied, that he would not let them go at the price agreed upon; he must have more money. The $250 paid was never returned or offered to be returned by the defendant, nor was any act done by the defendant to rescind the contract.

The plaintiff gave in evidence, after having proved that Smith & Mead were the agents of the defendant, a written paper, signed by them, in the words and figures following $

“Hew York, Jan. 25, 1866.

Received from Mr. Linden ten dollars for rent in advance, for 4 lots, 62d str. from Feb. first to Aug, first, 1866. 110.”

The plaintiff further proved, that the lots mentioned •in said paper were four of the lots described in said agreement; that on the 20th of February, 1866, Linden was in the actual possession of said four lots; that the two lots on Sixty-third street, were on that day in the actual possession of one Stillger, who held the same without any fixed prescribed term, but under a verbal agreement to surrender the possession to the defendant, upon a sale being made of- the lots. It was further proved, (subject to the plaintiff’s objection,) that there was a parol agreement or understanding between the defendant and *118Linden, that if the lots were sold he would remove therefrom. It was further proved that on the 20th of February, there were two unpaid city assessments for improvements upon said lots.

*George Shea,*for the plaintiff.

*Van Antwerp & James,*for the defendant.

Monell, J.

The unqualified refusal of the defendant to convey, rendered the demand for a deed in March or April sufficient in time, substance and form. An offer to execute the bond and mortgage and pay the balance of the purchase money, was therefore, unnecessary, *(Blood*v. *Goodrich,*9 *Wend.*68; *Driggs*v. *Dwight,*17 *id.*71,) and the plaintiff is entitled to a decree for the specific performance of the contract, unless his failure to accept the deed on the 20th of February was a rescission of it.

In the. view I have taken of this case it is not necessary to determine, whether the time stated for the completion of the purchase was or was not an essential part of the contract. If the defendant on that day was unable for any reason to perform on his part, then it cannot be insisted by him, that the specified time was of the essence of the contract, or that the omission of the plaintiff to „ demand performance on that day will excuse the defendant’s performance now. On the only day that the defendant offered and was willing to convey, the premises were in the actual possession of his tenants, for terms not then determined. They were also incumbered by assessments which were unpaid.

It is well settled that the ve'ndee of property, under a contract to convey a title *free from all incumbrances,*is not bound to take the title if, at the time performance is ten*119dered, there are incumbrances existing upon it. *(Judson*v. *Wass,*11 *John. 525. Tucker v. Woods,*12 *id.*190.) In the first case the action was to recover damages, for a breach of an agreement for the purchase of land upon which there was a mortgage, and the court held that the purchaser was not bound to pay for the land with the incumbrance upon it. In the other case, the court charged the jury, at the trial, that if there was an outstanding lease on the plaintiff’s property, which would have prevented his giving possession, in case the defendant had been willing to carry the contract into execution, the plaintiff was not in a situation to convey; and the charge was sustained. To the same effect are the cases of *Lawrence*v. *Taylor,*(5 *Hill,*107,) and *Fletcher*v. *Button,*(4 *N. Y. Rep.*396,) in which it was decided that a deed which conveyed no title was not a performance of a contract to convey.

The tenure of Linden, one of the persons in possession, was for a definite period. The written evidence continued" and extended the term to the 1st of August, 1866, and the parol evidence of any agreement limiting such term, was improper, and must be excluded. That portion of the premises, of a lease, for which there was no written evidence, was held under the parol arrangement, which was probably terminable at the option of the landlord. The person so holding was, however, a tenant at will, whose tenancy could not, without the exercise of such option, be termil nated except upon a notice of thirty days. (1 *R. S.*697.) To terminate the tenancy upon a sale of the premises, it was at least necessary that notice thereof should be given to the tenant; and it is very clear that until such notice was given, there could be" no termination of the tenancy. The proof offered, of a parol agreement on the part of the tenant of the four lots on Sixty-second street, to surrender the possession upon a sale by the owner, was not compe*120tent evidence. It was in conflict with the written contract contained in the receipt of January 25, 1866, which acknowledged the receipt of the rent for these lots in advance, to the 1st of August, 1866, and tended to vary such written contract. The receipt was the best evidence of the letting, and must control.

The question then arises, was the defendant, on the 20th of February, in a situation to convey the lots *free from all incumbrances ?*The evidence is, that the lots bn that day, were in the actual possession of the defendant’s tenants, holding respectively under the agreements, which have been mentioned. There is no proof that any notice of the sale had been given, or that the' defendant had exercised his option, if he had any, of terminating the tenancy. The agreement to surrender was not such a covenant, it seems to me, as would run with the land, and enure to the benefit of the grantee, especially without an express and separate assignment thereof from the lessor, (1 *R. S.*747, §§ 23, 24, 35,) and the grantor after conveyance, could not remove the tenants for holding over, he then not having the reversion. The grantee, without such assignment, would take the land burthened with tenures which would deprive him of the possession, or the power of obtaining possession until the tenancy ceased. The arrangement with Stillger, or even with Linden, if it was competent to prove it in this case, was a mere personal privilege to the landlord to enable him to regain possession, upon the happening of an event, and I think he alone could exercise it. If he failed to exercise it, and conveyed the title without a special assignment of the agreement with his tenant, the latter would be released, and he could not be disturbed until the end of his term. The *“sale”*was made when the contract was signed, and it was then the duty of the vendor to give notice to his tenants that he terminated the tenancies, and thus put *121himself in a condition to deliver possession of the lots, with the delivery of the deed.

In respect to the four lots occupied by Linden, I do not think the defendant was capable on the 20th of February, of giving to his grantee either the possession, or the right to the possession. Upon all the evidence, it seems to me, Linden could hold them until the 1st of August, as well against the defendant, as also against his grantee, notwithstanding the parol agreement that upon a sale of the premises he would surrender the possession.

The unpaid assessments were also an incumbrance upon the lots, and excused the plaintiff’s performance on the day; and the defendant can not claim that the time fixed by the contract for the delivery of the deed, was an essential part of such contract, if he on that day could not give a free title..

If I am correct in the views I have expressed, the time mentioned in the contract for the delivery of the deed, was not, as respects the rights of the plaintiff, an essential part of it; or if it was, performance by the plaintiff on that day, was excused, by the inability of the defendant to' convey a title free from all incumbrances.

The demand, therefore, on a subsequent day, was sufficient, and entitles the plaintiff to a performance of the contract.

The plaintiff must have judgment accordingly, with costs.