An owner of real estate who has contracted to sell it and to give a good and marketable title at a certain date, is bound to remove or make good a defect in his title within the additional time allowed him therefor by the purchaser on discovering the defect, otherwise the latter is under no obligation to tender the balance of the purchase price; and upon the owner's failure to do this, the purchaser may elect — as in the present case — to rescind the contract and sue to recover any payment theretofore made by him upon it.
CASE, J.
When the contract was made no impediment to carrying out its full provisions was known to the parties. The plaintiffs' discovery of the defect in McNamara's title, and his treatment of the offered choice of courses made by them as a result of it, imported a new element into their relations. By accepting time to enable him to clear his own title, he not only conceded his present inability to fulfil the agreement, but suspended the need of any further action by the plaintiffs until he should have satisfied the single condition on which the extension was accorded him. He never met the requirement, and the result of his failure to perform this prerequisite to the transfer within the time fixed for affecting it, was to put him in default on his whole undertaking. Under these circumstances a tender of performance by the plaintiffs became as unnecessary through his not acting at all, as it would have been in the face of his positive refusal to meet the obligations of his agreement, and for the same reasons. "In such a condition of things a tender would have been useless, for the refusal in effect so declared it." Nothe v. Nomer, 54 Conn. 326, 329, 8 A. 134; Janulewycz v. Quagliano, 88 Conn. 60, 64, 89 A. 897; Smith v. Lewis, 24 Conn. 624.
The plaintiffs had a choice of remedies. By one of them they "might, after default made by the defendant, have elected to rescind the contract and sue for a recovery of the advancements made thereon." Janulweycz v. Quagliano, supra; Lyon v. Annable, 4 Conn. 350. They chose and pursued this course, and for the reasons given the finding clearly discloses their right to a recovery upon it.