#### Duer's Executors v. Harrill.

From Hertford.

Where executors comiv-cted to sell their testator’s interest in certain lands, “no incumbrances guaranteed,” and, after the sale, tcudeied a sufficient deed of conveyance to the purchaser, which he refused, it was held that the executors were entitled to recover without shewing that the title-to the land was in their testator.

This was an arfen on the case to recover damages for the breach of a (/nitract. The Plaintiffs, as Ese; .«tors of Ducr, and by virtue of authority given the i in ins will, exposed to public safe, a tract of land which t¡;cy described as lam1, “which their testator purchased of Thomas CopeL'cd, supposed to contain one. hundred acres; Duer’s interest or right to said land, only; no incumbrances guaranteed.” The Defendant, at «he sale, became the pur, baser j a deed, duly executed by the Plaintiffs, was tendered to the Defendant, which he refused to accept. On the trial below, it was contended that, to entitle Plaintiffs to recover, it was incumbent on them to shew that the title to the land w as in their testator; and the Court being of this opinion, the Plaintiff’s were nonsuited, and appealed.

Taylor, Chief Justice.

Whether the Plaintiffs have, a right to call upon the Defendant, for the non-execution of the agreement to purchase, depends upon the ¡ . den- tar contract ¡nade between them. Though the , oral From Hertford. *51ride of law may require the seller to shew what title he has. or, ,;r< erdiog to the 3a'-',• derisi , (6 East. Rep. 555.) a*. :h:s! «o was seise.! in fee, an.’ -i ado a good and patMactory title by the ti-wified. yet the contract set forth Li oris rase, evidently dispenses with any such awu'im’tit. it is too clear to be dispulod, that Ike Executors sold only the rigid of their testator, end that ihoy would not w arrant the title to the purchaser. In Ibcso cass h it is the dnly of the Court, so to constnw the terms of the sale, as to collect the meaning of the paction» without Saying too much stress upon technical words which may have been improperly introduced. Thus, where the purchaser of a term for years, stipulated to pay a certain rent before the lease was granted, the Court held, that though the money to he paid could not strictly be called a rent, yet the parties intended the money should he paid, and it must be paid accordingly---(Woodfall's L. & T. 241.)

So, in this case, the terms “ guarantee incumbrances” could not be meant in their literal signification, without a manifest absurdity, and can only be taken to import that the .Executors would not warrant the title, and that the bidders must take the risk upon themselves. This imposed on them the duty of enquiring into the title, before they bid for the land, but furnishes no defence to the action. As the Executors have tendered a deed, they are entitled to damages for the non-performance of the. contract. The nonsuit must be set aside and a new trial awarded.

Henderson, Judge.

In actions on executory contracts, where the promises or covenants are concurrent, the Plaintiff must shew a performance on his part, or a tender and refusal, or a discharge from the performance. In this case, the Plaintiffs contracted to sell their testator’s interest in certain lands, and the evidence shews that they tendered a sufficient deed of conveyance to the *52Defendant for that interest, which he refused to receive 5 it. appears to me that this was ail that the Waiutiffs had contracted to do, and that the Judge erred in re.piiriag more.

By the expressions “ no incumbrances guaranteed," I understand the vendors to meats, that they would guarantee that there were no incumbrances 5 if there were any, the Defendants should have shown them —the Plaintiffs should not have been called on, to prove a

Haul, Judge, concurred.