Grey, V. C.
The first point taken by the defendant is his contention that ■the contract of sale is a unilateral agreement, which the defendant may, if he desires, enforce against the complainant, but which-■the complainant may not compel the defendant to observe.
Whatever might have been the construction-of the contract standing barely upon its expressed terms, the subsequent circumstances and the dealings of the parties with the subject have established a mutual contract for the sale and purchase of the lots in question. By the terms of the written contract the complainant who signed it declared that he had sold the lot to Labbree, naming no date for the delivery of the deed. Labbree, who had not signed it, began at once to make payments on •account of the purchase-money. When the assignment to the defendant, Mooney, was made, he was accepted by the complainant as the purchaser in the place of Labbree. The defendant continued these payments for some four years until he had paid $915. With complainant’s assent, the defendant took possession of the lots agreed to be sold and dealt with them as his own. .He tendered the balance of the purchase-money, and- demanded •a deed from the complainant, who admitted that the defendant ■was the purchaser, and both then agreed that the complainant should obtain a release of the premises from the mortgage and should then deliver the deed to the defendant or to his ■appointee.
These dealings of the defendant with the complainant touching the premises in question have also taken this case out of the •class where a contract of sale is sought to be enforced' by the vendor against á mere assignee' having no contract with the vendor and not in privity with him. The defendant has not •only paid to the vendor complainant the greater part of the purchase-money, but has actually entered into possession of the [170]*170premises, and tendered the balance of the agreed price and demanded a deed and the clearing of the title, and the complainant has accepted him as the purchaser and tendered him a deed and now files his bill to enforce payment. These acts of part performance are sufficient to establish a contract between the complainant and defendant which would be enforced in equity,, even if entirely by parol. Green v. Richards, 8 C. E. Gr. 33 ; affirmed on appeal, 8 C. E. Gr. 537.
The demand by the defendant for his deed under the agreement was in and of itself an affirmation by him of that agreement as binding upon him. McTague v. Sea Isle City Building Association, 28 Vr. 429.
The defendant further insists that complainant failed to perform or tender timely performance. This is put upon two grounds — -first, that there was no such prompt action by the-complainant in completing the contract as was due from him and secondly, that there was a special agreement made between defendant’s counsel and the complainant naming a specific day for performance, with which the complainant failed to comply.
In this state time is not held to be of the essence of an agreement to convey lands, unless the parties have expressly so stipulated, or it follows by necessary implication from the nature of the transaction. Dynan v. McCulloch, 1 Dick. Ch. Rep, 14; affirmed on appeal, 1 Dick. Ch. Rep. 608.
In the original written contract in this case no time is fixed for the delivery of a deed. By fair intendment it is deliverable-upon the final payment of the purchase-money. So far as the element of time is concerned, it appears to have been laid aside-in this matter. The contract called for payment by monthly installments. Sometimes these were anticipated, sometimes long overdue. The contract called for payment of interest on unpaid purchase-money. No interest was paid at any time. In November, 1895, $190 of purchase-money is admitted to have-become due, but neither payment nor tender was made until October, 1896. Nothing either in the nature of the property dealt with, or in the declared objects of the parties, indicated an intent to make the time of performance an essential element,. [171]*171either of the original contract or of the subsequent agreement whereby the defendant was accepted as purchaser, let into possession, and partial payments were accepted from him. The complainant had no other duty as to performance than to deliver a deed with a clear title when the defendant should pay Or tender the last of the purchase-money. There is no showing of any attempt to make such final payment, until the latter part of October, 1896, after a year’s delay since the last payment.
The special agreement set up by the defendant fixing a named day for the performance of the refunding of the purchase-money, may be better understood upon examining the arrangements made by the parties as to the performance of the contract, prior to the time when this special agreement is alleged to have been made. The defendant, in the fall of 1896, concluded to complete the contract by paying the $190 yet due. He saw the complainant’s agent, and also sent his friend, Mr. Hoosey, to' see the agent for that purpose. When the agent was asked if the lot was clear, he stated the facts as to the lien of the blanket mortgage. The defendant testified that they made up their minds that they would not take the deed and pay the balance of the purchase-money until the lot was clear. Mr. Hoosey, who called on the complainant’s agent at the defendant’s instance, testifies that the complainant’s agent declared that he would get a release of the lot from the lien'of the mortgage; that the agent did not fix anytime, but said he “would get it soon.” “He didn’t give no definite time in regard to when it could be cleared.” The parties appear to have accepted this situation, and to have waited for a time for the complainant to get the release, and, becoming impatient, Mr. Mooney, early in November, 1896, employed counsel.
The rule regarding the rescission of a contract for sale of lands, because of the discovery of an unknown outstanding mortgage upon the premises, has been declared by the court of appeals in affirming Oakey v. Cook, 14. Stew. Eq. 352. The time to rescind the contract was at once that the existence of the mortgage was discovered. None of the parties desired at that time to rescind the contract because of the mortgage. Theundis[172]*172.puted testiniony in this case'shows'that the mortgage covered but a small fraction of the lot, one thousandth part is the quantity named. It is common practice to clear the title at the time of performance, though’ it’ may not be clear when the contract is made. No reason appeared why a release could not’be had and the contract for sale carried out, and the parties'accépted this mode ■of settlement. The complainant under this arrangement began his efforts to secure the release. As nearly as the proofs show, this was in the last week of October, 1896. Up to this time, though nil the facts were known, there appears to have been neither ■thought nor suggestion that there was any fraudulent act or purpose on the part of the complainant in the transaction. ■ Nor .•does any of the testimony indicate that the complainant at any time acted with a fraudulent intent. He testified that he always .supposed there would be no difficulty in obtaining a release of the lots from the lien of the blanket mortgage, and considering the almost infinitesimal extent of its lien, he appears to have been justified in that belief. The complainant; however, when he set about securing the release, did find trouble in procuring it.
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Grey, V. C.
The first point taken by the defendant is his contention that ■the contract of sale is a unilateral agreement, which the defendant may, if he desires, enforce against the complainant, but which-■the complainant may not compel the defendant to observe.
Whatever might have been the construction-of the contract standing barely upon its expressed terms, the subsequent circumstances and the dealings of the parties with the subject have established a mutual contract for the sale and purchase of the lots in question. By the terms of the written contract the complainant who signed it declared that he had sold the lot to Labbree, naming no date for the delivery of the deed. Labbree, who had not signed it, began at once to make payments on •account of the purchase-money. When the assignment to the defendant, Mooney, was made, he was accepted by the complainant as the purchaser in the place of Labbree. The defendant continued these payments for some four years until he had paid $915. With complainant’s assent, the defendant took possession of the lots agreed to be sold and dealt with them as his own. .He tendered the balance of the purchase-money, and- demanded •a deed from the complainant, who admitted that the defendant ■was the purchaser, and both then agreed that the complainant should obtain a release of the premises from the mortgage and should then deliver the deed to the defendant or to his ■appointee.
These dealings of the defendant with the complainant touching the premises in question have also taken this case out of the •class where a contract of sale is sought to be enforced' by the vendor against á mere assignee' having no contract with the vendor and not in privity with him. The defendant has not •only paid to the vendor complainant the greater part of the purchase-money, but has actually entered into possession of the [170]*170premises, and tendered the balance of the agreed price and demanded a deed and the clearing of the title, and the complainant has accepted him as the purchaser and tendered him a deed and now files his bill to enforce payment. These acts of part performance are sufficient to establish a contract between the complainant and defendant which would be enforced in equity,, even if entirely by parol. Green v. Richards, 8 C. E. Gr. 33 ; affirmed on appeal, 8 C. E. Gr. 537.
The demand by the defendant for his deed under the agreement was in and of itself an affirmation by him of that agreement as binding upon him. McTague v. Sea Isle City Building Association, 28 Vr. 429.
The defendant further insists that complainant failed to perform or tender timely performance. This is put upon two grounds — -first, that there was no such prompt action by the-complainant in completing the contract as was due from him and secondly, that there was a special agreement made between defendant’s counsel and the complainant naming a specific day for performance, with which the complainant failed to comply.
In this state time is not held to be of the essence of an agreement to convey lands, unless the parties have expressly so stipulated, or it follows by necessary implication from the nature of the transaction. Dynan v. McCulloch, 1 Dick. Ch. Rep, 14; affirmed on appeal, 1 Dick. Ch. Rep. 608.
In the original written contract in this case no time is fixed for the delivery of a deed. By fair intendment it is deliverable-upon the final payment of the purchase-money. So far as the element of time is concerned, it appears to have been laid aside-in this matter. The contract called for payment by monthly installments. Sometimes these were anticipated, sometimes long overdue. The contract called for payment of interest on unpaid purchase-money. No interest was paid at any time. In November, 1895, $190 of purchase-money is admitted to have-become due, but neither payment nor tender was made until October, 1896. Nothing either in the nature of the property dealt with, or in the declared objects of the parties, indicated an intent to make the time of performance an essential element,. [171]*171either of the original contract or of the subsequent agreement whereby the defendant was accepted as purchaser, let into possession, and partial payments were accepted from him. The complainant had no other duty as to performance than to deliver a deed with a clear title when the defendant should pay Or tender the last of the purchase-money. There is no showing of any attempt to make such final payment, until the latter part of October, 1896, after a year’s delay since the last payment.
The special agreement set up by the defendant fixing a named day for the performance of the refunding of the purchase-money, may be better understood upon examining the arrangements made by the parties as to the performance of the contract, prior to the time when this special agreement is alleged to have been made. The defendant, in the fall of 1896, concluded to complete the contract by paying the $190 yet due. He saw the complainant’s agent, and also sent his friend, Mr. Hoosey, to' see the agent for that purpose. When the agent was asked if the lot was clear, he stated the facts as to the lien of the blanket mortgage. The defendant testified that they made up their minds that they would not take the deed and pay the balance of the purchase-money until the lot was clear. Mr. Hoosey, who called on the complainant’s agent at the defendant’s instance, testifies that the complainant’s agent declared that he would get a release of the lot from the lien'of the mortgage; that the agent did not fix anytime, but said he “would get it soon.” “He didn’t give no definite time in regard to when it could be cleared.” The parties appear to have accepted this situation, and to have waited for a time for the complainant to get the release, and, becoming impatient, Mr. Mooney, early in November, 1896, employed counsel.
The rule regarding the rescission of a contract for sale of lands, because of the discovery of an unknown outstanding mortgage upon the premises, has been declared by the court of appeals in affirming Oakey v. Cook, 14. Stew. Eq. 352. The time to rescind the contract was at once that the existence of the mortgage was discovered. None of the parties desired at that time to rescind the contract because of the mortgage. Theundis[172]*172.puted testiniony in this case'shows'that the mortgage covered but a small fraction of the lot, one thousandth part is the quantity named. It is common practice to clear the title at the time of performance, though’ it’ may not be clear when the contract is made. No reason appeared why a release could not’be had and the contract for sale carried out, and the parties'accépted this mode ■of settlement. The complainant under this arrangement began his efforts to secure the release. As nearly as the proofs show, this was in the last week of October, 1896. Up to this time, though nil the facts were known, there appears to have been neither ■thought nor suggestion that there was any fraudulent act or purpose on the part of the complainant in the transaction. ■ Nor .•does any of the testimony indicate that the complainant at any time acted with a fraudulent intent. He testified that he always .supposed there would be no difficulty in obtaining a release of the lots from the lien of the blanket mortgage, and considering the almost infinitesimal extent of its lien, he appears to have been justified in that belief. The complainant; however, when he set about securing the release, did find trouble in procuring it. There was delay in getting'access to the holder of the mortgage because of his sickness and afterwards an indisposition on his part to discharge the lots. These reasons interfered with the .■success of the complainant in his efforts to procure the release. A period of several weeks intérvened, during which the complainant was constantly endeavoring to obtain the release of the •corner of the lot from the lien of the blanket mortgage, under the arrangement above stated. This plan did not name any ■specific day when the lot could be cleared and the deed delivered, and compliance within a reasonable period would have satisfied the terms of the arrangement.
■' Mere delay in the performance of this contract (where the acts ■of the parties show that the contract could be satisfied in all its terms by performance within a reasonable time) did not of itself entitle the defendant to rescind the contract. The court of appeals, in a case somewhat like this, refused to support an action brought to recover the purchase-money, McTague v. Sea Isle City Building Association, 28 Vr. 428.
[173]*173It was at this stage of the matter the defendant employed his counsel, and it is asserted that in response to a demand by the latter that the complainant should clear the title, the complainant, who had theretofore named no specific day when he would obtain the release, agreed with the defendant’s counsel that if he did not obtain the release by Friday, November 27th, 1896', he would on that day return the portion of the purchase-money paid, with interest.
. Up to this period no circumstance appears which made time of the essence of the performance, and the establishment of the fact of the change from performance within a reasonable period to performance on a named day, depends wholly upon the proof of the making of the alleged agreement by the complainant that he would conclude the matter on the 27th day of November or refund the price. The defendant sets up this alleged change of arrangement, and with the introduction of this new element into the case the defendant must carry the burden of proving it. The only testimony narrating or supporting the allegation of this agreement to clear the title or' refund on a named day is that of the defendant’s counsel. The complainant, who is alleged to have made the agreement, explicitly and circumstantially denies it. The attending circumstances do not definitely support either statement. The complainant continued to endeavor to get the release and explained the reasons which delayed his success. The counsel for the defendant advised the arrest of the complainant for fraud and brought suit against him for the recovery of the part of the purchase-money paid. The defendant does not appear to have delivered up or tendered the possession of the premises to the complainant at any time.
The testimony offered for the defendant does not carry the burden of proof to show that there was a change of the contract whereby the complainant agreed to get a release by a named day or to refund the price. This change having failed of proof, the parties stood under their former arrangement as to time for completion of the contract. There is neither allegation nor proof that the length of time actually taken in obtaining the release of the mortgage, which was from October 26th, 1896,.t9*Decem-[174]*174ber 15th, 1896, was an unreasonable period, in view of the difficulties which interfered. Nor are any circumstances shown which made performance at the latter date or when tender was made either injurious or unreasonable. The complainant is shown to have diligently pursued the matter from the time when the arrangement was made that he should secure the release. He was unable at first to induce the holder of the mortgage to give the release, but finally obtained the whole mortgage money to be raised and the mortgage to be assigned to a friendly holder, for the express purpose of getting from him the release of the small corner of the lots in question which it covered. This was done on December 15th, 1896, and was, under the circumstances of the case, a fair compliance with the terms of the arrangement which had been made before the defendant employed counsel, and left the defendant without reasonable cause to rescind the contract or to bring suit to recover the purchase-money. He should pay the balance of the purchase-money and accept his deed, and should be restrained from prosecuting any suit to recover the purchase-money paid.
I will advise a decree in accordance with the views above expressed.