By the Court, C. L. Allen, P. J.
I do not think the defendant was entitled to notice to quit. The case of Doolittle v. Eddy, (7 Barb. 74,) decided in this district, establishes the proposition, if it was not settled by previous cases, that an executory contract for the sale' and purchase of land, giving to the purchaser a right to enter and possess the premises until default in the payment of the purchase money, without any reservation of rent, or fixed time, is, as respects the possession, a license and not a lease, and the relation of landlord and tenant does not exist. The defendant here was to have the occupation and possession of the premises as long as he should fulfill and comply with the stipulations of the contract. But if he should make default then the agreement should be void, and the plaintiff was to be at liberty “ to immediately enter into the possession and occupancy of the premises and was to be forever discharged from the agreement.” The case does not differ, in this particular, from the one cited; and if the contract was broken on the part of the defendant, the plaintiff had a right to enter without notice, or demand of possession.
The material and important question in this case is, whether the defendant had not substantially complied with the terms of the agreement, so as to be entitled to a deed for the premises. The agreement provided that on the payment of $745 in five years, with annual interest, the defendant should be entitled to a deed; and if the plaintiff continued to occupy the brick part of the dwelling house, such occupation was to be considered as equivalent to the interest, by way of rent. There is no dispute as to the fact of occupation. It was proved, and indeed seemed to be conceded, on the trial, that the plaintiff had occupied this part of the dwelling house, from the time of executing the [514]*514agreement to the commencement of this action. Consequently the interest was paid, and it was'only necessary for the defendant to pay the principal sum, at the time appointed in the contract, to entitle him to a deed of the premises in question. The testimony is that on the day before the time for payment expired, an interview was had with the plaintiff, during which the amount was tendered, in specie, and a deed requested. He replied that he would not receive any thing, nor give a deed. Here then was an absolute tender of the money, a refusal to receive, and to execute a conveyance. It is true no deed was offered by the defendant, at that time, ready for execution. But that was not necessary, and if it had been, the general rule that a strictly legal tender may be waived, by an absolute refusal to receive the money or do the act required, clearly applies, on the principle that no man is bound to perform a nugatory act. Where there is a mutual obligation on a purchaser to pay the purchase money, and on the vendor to convey the property purchased, an offer and readiness to perform on the part of the purchaser, is sufficient, especially where the vendor refuses to convey at all. (Bellinger v. Kitts, 6 Barb. 273.) It appears to me that upon this part of the case alone, sufficient is shown to defeat the plaintiff’s right of recovery.
But the plaintiff insists that his refusal to convey at that time, was based upon the fact that he had not enjoyed such privileges in the house as he ought to have done. He said they must settle, and he would not give a deed till they did. There was no proof, nor was any complaint of that kind urged or pretended on the trial. The parties, however, agreed to leave the question as to damages to Samuel Murdock and James S. Whallon, and the plaintiff was to see Whallon, and ascertain when he could attend to the matter. The first indorsement was then made upon the contract, and signed by the plaintiff, but not under seal, agreeing to extend the time of payment from the 9th to the 25th of April, 1853. This was done, undoubtedly, to enable the arbitrators to determine in the meantime, as to what amount of damages, if any, the plaintiff was entitled to. On the 25th of April, or about that time, the money was again offer[515]*515ed to the plaintiff and a deed requested. He refused to receive the money or to convey. He said he had not been able to get Whallon to attend to it, and then indorsed another extension of the time of payment to the 15th of May following, which would be Sunday. A few days before the 15th, the plaintiff was again offered his money, if he would execute a deed, which he refused. The defendant offered to show that at this time, and at others, the plaintiff, in view of the delay in procuring Whallon to attend to the settlement of the damages, agreed by parol, with the defendant, not to take advantage of the expiration of the contract ; and that he stated to the defendant that the lapse of a few days would not make any difference with him. And the defendant proposed to follow up that proof by showing a tender of the money, and of a deed ready to be executed by the plaintiff, on the 18th of May, 1853, three days after the expiration of the time by the last extension. This testimony was objected to by the plaintiff and rejected by the judge, on the ground that the agreement was by parol. And he seems to have regarded the extension of time as entirely void, because not under seal, as he charged the jury that the evidence on the part of the defendant was wholly insufficient to constitute a defense, and that the plaintiff was entitled to recover.
I think the learned justice erred. It has repeatedly been decided that the time of performing a written contract under seal may be enlarged by parol. In the case of The Mayor &c. of New York v. Butler, (1 Barb. S. C. Rep. 325, 337,) the court remarked that such an extension is in effect a waiver of a strict performance of the conditions of the contract; that no party can insist upon a condition precedent, when its non-performance has been caused by himself; that there may be an effectual waiver by parol of a condition specified in a written or even a sealed contract. “ It is a sound principle/’ says Ch. J. Thompson in Fleming v. Gilbert, (3 John. 528,) “ that he who prevents a thing being done, shall not avail himself of the nonperformance he has occasioned.” The case of Wiswall v. McGown, (2 Barb. S. C. Rep. 270,) relied upon by the plaintiff’s counsel, does not militate against this doctrine. The court say, [516]*516in that case, that courts of equity will interfere in favor of parties who were not ready to perform their agreement at the day, where a party has failed, through some unforeseen accident, or valiere there is something indicating a waiver of the objection, by the other party. But the case of Esmond v. Van Benschoten, (12 Barb. 366,) adjudicated in this district, settles this question beyond dispute, and decides that “ it is competent for parties on the expiration of a sealed contract, to enlarge the time for performance by parol.”
The extension of the time here was occasioned by the plaintiff. The defendant was ready, at the day appointed, to pay the money and receive his deed. The plaintiff refused, and indorsed an extension of the time of payment on the contract, to enable him in the meantime to procure the services of Mr. Whallon, in assisting Mr. Murdoch to ascertain the amount of damages to which he was entitled. He failed on his part to procure such attendance.
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By the Court, C. L. Allen, P. J.
I do not think the defendant was entitled to notice to quit. The case of Doolittle v. Eddy, (7 Barb. 74,) decided in this district, establishes the proposition, if it was not settled by previous cases, that an executory contract for the sale' and purchase of land, giving to the purchaser a right to enter and possess the premises until default in the payment of the purchase money, without any reservation of rent, or fixed time, is, as respects the possession, a license and not a lease, and the relation of landlord and tenant does not exist. The defendant here was to have the occupation and possession of the premises as long as he should fulfill and comply with the stipulations of the contract. But if he should make default then the agreement should be void, and the plaintiff was to be at liberty “ to immediately enter into the possession and occupancy of the premises and was to be forever discharged from the agreement.” The case does not differ, in this particular, from the one cited; and if the contract was broken on the part of the defendant, the plaintiff had a right to enter without notice, or demand of possession.
The material and important question in this case is, whether the defendant had not substantially complied with the terms of the agreement, so as to be entitled to a deed for the premises. The agreement provided that on the payment of $745 in five years, with annual interest, the defendant should be entitled to a deed; and if the plaintiff continued to occupy the brick part of the dwelling house, such occupation was to be considered as equivalent to the interest, by way of rent. There is no dispute as to the fact of occupation. It was proved, and indeed seemed to be conceded, on the trial, that the plaintiff had occupied this part of the dwelling house, from the time of executing the [514]*514agreement to the commencement of this action. Consequently the interest was paid, and it was'only necessary for the defendant to pay the principal sum, at the time appointed in the contract, to entitle him to a deed of the premises in question. The testimony is that on the day before the time for payment expired, an interview was had with the plaintiff, during which the amount was tendered, in specie, and a deed requested. He replied that he would not receive any thing, nor give a deed. Here then was an absolute tender of the money, a refusal to receive, and to execute a conveyance. It is true no deed was offered by the defendant, at that time, ready for execution. But that was not necessary, and if it had been, the general rule that a strictly legal tender may be waived, by an absolute refusal to receive the money or do the act required, clearly applies, on the principle that no man is bound to perform a nugatory act. Where there is a mutual obligation on a purchaser to pay the purchase money, and on the vendor to convey the property purchased, an offer and readiness to perform on the part of the purchaser, is sufficient, especially where the vendor refuses to convey at all. (Bellinger v. Kitts, 6 Barb. 273.) It appears to me that upon this part of the case alone, sufficient is shown to defeat the plaintiff’s right of recovery.
But the plaintiff insists that his refusal to convey at that time, was based upon the fact that he had not enjoyed such privileges in the house as he ought to have done. He said they must settle, and he would not give a deed till they did. There was no proof, nor was any complaint of that kind urged or pretended on the trial. The parties, however, agreed to leave the question as to damages to Samuel Murdock and James S. Whallon, and the plaintiff was to see Whallon, and ascertain when he could attend to the matter. The first indorsement was then made upon the contract, and signed by the plaintiff, but not under seal, agreeing to extend the time of payment from the 9th to the 25th of April, 1853. This was done, undoubtedly, to enable the arbitrators to determine in the meantime, as to what amount of damages, if any, the plaintiff was entitled to. On the 25th of April, or about that time, the money was again offer[515]*515ed to the plaintiff and a deed requested. He refused to receive the money or to convey. He said he had not been able to get Whallon to attend to it, and then indorsed another extension of the time of payment to the 15th of May following, which would be Sunday. A few days before the 15th, the plaintiff was again offered his money, if he would execute a deed, which he refused. The defendant offered to show that at this time, and at others, the plaintiff, in view of the delay in procuring Whallon to attend to the settlement of the damages, agreed by parol, with the defendant, not to take advantage of the expiration of the contract ; and that he stated to the defendant that the lapse of a few days would not make any difference with him. And the defendant proposed to follow up that proof by showing a tender of the money, and of a deed ready to be executed by the plaintiff, on the 18th of May, 1853, three days after the expiration of the time by the last extension. This testimony was objected to by the plaintiff and rejected by the judge, on the ground that the agreement was by parol. And he seems to have regarded the extension of time as entirely void, because not under seal, as he charged the jury that the evidence on the part of the defendant was wholly insufficient to constitute a defense, and that the plaintiff was entitled to recover.
I think the learned justice erred. It has repeatedly been decided that the time of performing a written contract under seal may be enlarged by parol. In the case of The Mayor &c. of New York v. Butler, (1 Barb. S. C. Rep. 325, 337,) the court remarked that such an extension is in effect a waiver of a strict performance of the conditions of the contract; that no party can insist upon a condition precedent, when its non-performance has been caused by himself; that there may be an effectual waiver by parol of a condition specified in a written or even a sealed contract. “ It is a sound principle/’ says Ch. J. Thompson in Fleming v. Gilbert, (3 John. 528,) “ that he who prevents a thing being done, shall not avail himself of the nonperformance he has occasioned.” The case of Wiswall v. McGown, (2 Barb. S. C. Rep. 270,) relied upon by the plaintiff’s counsel, does not militate against this doctrine. The court say, [516]*516in that case, that courts of equity will interfere in favor of parties who were not ready to perform their agreement at the day, where a party has failed, through some unforeseen accident, or valiere there is something indicating a waiver of the objection, by the other party. But the case of Esmond v. Van Benschoten, (12 Barb. 366,) adjudicated in this district, settles this question beyond dispute, and decides that “ it is competent for parties on the expiration of a sealed contract, to enlarge the time for performance by parol.”
The extension of the time here was occasioned by the plaintiff. The defendant was ready, at the day appointed, to pay the money and receive his deed. The plaintiff refused, and indorsed an extension of the time of payment on the contract, to enable him in the meantime to procure the services of Mr. Whallon, in assisting Mr. Murdoch to ascertain the amount of damages to which he was entitled. He failed on his part to procure such attendance. He suffered the time again and again to elapse for the fulfillment of the contract, and finally attempted to shield himself under the technicality that the time for performance of the contract had expired ; that the agreement to extend it was not under seal, and was without consideration and void; and that the tender afterwards made, which he admits was sufficient as to amount, was too late. In my judgment, to allow these allegations to avail, would be to permit the plaintiff to take a most unjust advantage of his own wrong, and contrary to all the cases bearing upon the question. The plaintiff was not entitled to recover, and should at least have been nonsuited, if the defendant was not indeed entitled to the affirmative relief which he demands in his answer.
It is objected that the answer.is not sufficient for that purpose. If this were so, I should be inclined to permit the defendant to amend, as I consider his claim for relief clear and well founded. In actions of a legal character it now seems to be well settled that any defense, whether legal or equitable, may be interposed. That the same facts which would formerly have entitled a defendant to be relieved in equity may be set up in his answer as a full defense. (Dobson v. Pearce, 1 Duer, 142. 8 How. 416. [517]*5171 Whitt. 507 and cases cited. Haire v. Baker, 1 Selden's Rep. 357.)
[St. Lawrence General Term,
September 3, 1855.
This court said, in Dewey v. Hoag, decided at May term, 1854, on appeal from the decision of Justice Hand, (15 Barb. 365, 369,) that in order to avail himself of an equitable defense, “ the defendant must become an actor in respect to his claim, and his answer must contain all the elements of a bill for a specific performance, and he must ask and obtain affirmative relief. The judgment must be for the plaintiff that he recover the land, or for the defendant that the plaintiff convey to him on such terms as the court shall adjudge.” In that case the defendant claimed no affirmative relief, and leave was given to him to amend. The court, however thought that the cause of action did not arise out of the contract or transaction set forth in the complaint. Here the defense wholly arises out of the contract under which the defendant went into possession of the premises, and for a breach of which the plaintiff now seeks to recover possession. The defendant therefore brings himself within the 1st subdivision of sec. 150 of the code, and is entitled to avail himself of the defense which he sets up. The case of Foot v. Hadaway, relied upon by the plaintiff, does not impugn the decision in Dewey v. Hoag, but coincides with and affirms it.
I do not say that the answer is insufficient. I am rather inclined to think that it is not. Be that as it may, I am of opinion that a new trial should be granted, with costs to abide the event. The defendant should have leave to amend his answer, if he deems it necessary. And unless the proof should materially differ from that produced on the former trial, the plaintiff should be adjudged to convey to the defendant the premises in question, on payment of the sum mentioned in the contract.
Judgment accordingly.
C. L. Allen, Bockes and, James, Justices.]