#### SAMUEL H. CHRISTIAN vs. BARNABAS NIXON & AL.

In general, a vendor of land is bound to prepare the conveyance and tender it or offer to do so, but where, from the nature of the contract it appears, that those, to whom the title was to bo made, were unknown to the vendor, but known to him who made the purchase, the latterjis bound to give the necessary information to the vendor, or, if he fails, to pay the price contracted for.'

Appeal from the Superior Court of Law of Randolph County at a Special Term in July 1849, His Honor, Judge Battle, presiding.

No counsel for the plaintiff,

O. C. Mendenhall, for the defendant, submitted the following authorities:

To establish the doctrine of concurrent acts and dependent conditions in contracts, see Smith’s leading cases, *2page 9, 13 division. 8 T. R. page 366, case of Glate-brook v. Woodrow, see whole opinion of Grose, J. 1 Saunders Rep. 320, William’s notes division 5, top page 320, and case of Pordage v. Cole. 1 Blackford’s Reports 175, the case of Leonard v. Bates, and note. 10 Johns. Rep. 266, the case of Jones v. Gardner. 2. John. Rep. 207, case of Green v. Reynolds, see whole opinion of the Court. 15 Massachusetts Rep. 500, Gardiner v. Corson, see Jack» son, J., on 474 top page. 2 Iredell 297, Gardiner v. King. 4 Dev. 283, Cowper v. Saunders. 1 Yentris, Large v. Cheshire. Salk. 112, Col. v. Briggs. Stephen. Nisi Prius. 1072. 58 E. C. L. Repts. 164, Sanders v. Opie, 2 Saund 350. 4 T. R. 763. 1 East. 203, Ransom v. Johnson, see Kenyon’s opinion 206 top. 4 Iredell 497, Clayton v, Blake. 2 Pickering 292. 1 Strange 569, Lock v. Wright,

Pearson, J.

Phineas Nixon, Sen., owned a tract of land, to which the plaintiff alleged he had acquired title, under a sale for taxes. After the death of the said Phineas, his executors Phineas Jr. and Barnabas Nixon, in behalf of their testator’s estate, proposed to buy the claim of the plaintiff: and fifty dollars was finally agreed on as the price. The contract was closed by a letter from Phineas Nixon to the plaintiff, in which he says, “ Thou may’st consider this as our promise to pay thee fifty dollars for thy quit-claim belonging to the estate of our father.” — • Signed “ Phineas Nixon, Ex’r. of Phineas Nixon, dec’d.”

Phineas Nixon, Jr. afterwards died, and the defendants administered upon his estate. The plaintiff called on the defendant Barnabas for the $50, and told him he was ready to execute the quit-claim deed, if he knew to whom to make it, and asked who were the persons entitled as heirs of Phineas Nixon, Sen., and to whom he should make the deed* The defendant refused to pay the money and declined giving the information requested. The *3plaintiff then issued a warrant for the .fifty dollars. His Honor was of the opinion that the plaintiff had not made out a case. In this there was error.

The payment of the money and the execution of the deed were concurrent acts; and the plaintiff was n^t entitled to the money, until he had performed,, or offered to, perform, his part of the agreement.

As a general rule, it is the duty of the vendor to prepaid the deed, and deliver, or offer to deliver it, to the vendee, this being embraced in what he has agreed to do in consideration of the price. The case is different in England, in consequence of the peculiar circumstances existing in that country, which make conveyances extremely complicated. Those circumstances do not exist here, and we are governed by the rule, that each party must do or oiler to do all he has undertaken, before he can require performance of the other. The preparation of the deed is considered a part of the vendor’s undertaking, unless the terms of the contract furnish an inference to the contrary. When the land to be conveyed and the person to whom the deed is to be made are certain, so that the vendor knows how to make it, it is his duty to do it; but when the contract is general and the person to whom the vendor may wish the deed made, is not ascertained, then it is the duty of the vendee to prepare the deed, or at all events to give the vendor such information as will enable him to do it. This is necessarily im« plied from the fact, that the contractas left open in this particular; for otherwise the vendor would be required to do an impossibility, and the refusal of the vendee to give this information, which lies within his knowledge, evinces a desire on his part to have a pretext for avoiding his contract.

In this case, the contract was made in behalf of those, who were entitled to the land, as devisees or heirs of Phineas Nixon, Sen, The plaintiff is not presumed to *4know them, but the fact is within the knowledge of the defendants. It was their duty to give the information ; by withholding it, they put it out of the power of the plaintiff to make the deed. They cannot take advantage of their own wrong, and thus escape from the performance of a contract of their intestate.

Per Curiam. There must be a venire de novo,