Opinion of the Court.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

Upon the facts contained in the previous statement, there is no room to doubt that the judgment of the trial court dismissing the complaint, and the judgment of the Supreme Court of the Territory of Utah affirming that judgment, were correct, unless there was material error in the action of the district court in failing to find whether the appellee Crowther tendered the abstract of title called for in the contract.

The appellants contend that the question of the tender of the abstract was in issue and was material; that, under the system of pleading prevailing in the courts of the Territory of Utah, full findings are required upon every material issue; and that if any material issue is left unfound, it is ground for reversal of the judgment.

But, even if it be conceded that Crowther did not tender the abstract, the finding of that fact would not have rendered a different judgment necessary; and hence the supposed fact was really immaterial.

The action was in the nature of a bill for specific performance of a contract for the sale and purchase of a tract of land. If the contract is construed as making it the duty of Crowther to tender the abstract, yet his failure to do so did not dispense with performance or the offer to perform on the part of the complainants. His failure to furnish the abstract might have justified the complainants in declaring themselves off from the contract, and might have formed a successful defence to an action for damages brought by Crowther. But if they wished to specifically enforce the contract, it was necessary for the complainants themselves to tender performance. To entitle themselves to a decree for a specific performance of a contract to sell land it has always been held necessary that the purchasers should tender the purchase money. This is the rule in the ordinary case of a mutual contract for the sale and purchase of land. And the rule is still more stringently applied in the case of an optional sale, like the present one, where time is of the essence of the contract, and where Crowther could not have enforced

Opinion of the Court.

specific performance. In such a case, if the vendee wish to compel the other to fulfil the contract, he must make his part of the agreement precedent, and cannot proceed against the other without actual performance of the agreement on his part, or a tender and refusal. Bank of Columbia v. Hagner, 1 Pet. 455, 464; Marble Co. v. Ripley, 10 Wall. 339, 359.

The second and third findings were expressly to the effect that at no time during the thirty days specified in the contract did the plaintiffs tender or offer to pay the defendants the purchase money, nor signify their intention to accept the terms of the contract, and that said plaintiffs were not ready or willing to pay the balance of the purchase money. Those were the findings of the trial court, and the Supreme Court reached the same conclusions upon a review of the testimony which was all in the record; and its conclusions upon this as a question of fact are not reviewable by this court. Hawes v. Victoria Mining Co., 160 U. S. 303.

The bill and answer disclose an issue as to the claim of Lynch and Glasmann that they were bona fide purchasers for value, without notice, of the tract of land specified in the contract between the plaintiffs and Crowther; and as the answers were fully responsive to the allegations of the complaint, and as no evidence was adduced by the plaintiffs to sustain the bill in that particular, there would seem to be no reason why the complaint should not have been dismissed on that issue. As, however, neither the trial court nor the Supreme Court adverted to that phase of the case, and as there may have been reasons not disclosed to us by the record why that ground of defence was not put forward, we shall not consider it.

The Supreme Court of the Territory also expressed the opinion that, upon the facts disclosed by the record, the complainants had a full and complete remedy at law for all the damages they may have suffered by reason of any and all breaches of the contract, if any were committed, by the defendant Crowther. No errors, however, have been assigned to this ruling.

We think the appellants have failed to sustain their specifications of error, and the decree of the Supreme Court of the Territory is accordingly

Affirmed.

Opinion of the Court.

MONTGOMERY v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TENNESSEE.

No. 186. Submitted March 27, 1896. - Decided April 13, 1896.

Goode v. United States, 159 U. S. 663, followed in holding that in the trial of an indictment against a letter carrier, charged with secreting, embezzling or destroying a letter containing money in United States currency, the fact that the letter was a decoy is no defence.

The carrier's duties are the same, whether the letters are genuine or decoys.

THE case is stated in the opinion.

Mr. Lewis Shepherd and Mr. Creed F. Bates for plaintiff in

error.

Mr. Assistant Attorney General Whitney for defendants in

error.

MR. JUSTICE SHIRAS delivered the opinion of the court.

Thomas M. Montgomery, the plaintiff in error, was indicted in the Circuit Court of the United States for the Eastern District of Tennessee, for the crime of embezzling and stealing, on March 8 and 9, 1890, certain letters containing money in United States currency, which had come into his possession as a railway postal clerk or route agent, on the railway mail route between Chattanooga, Tennessee, and Bristol, Tennessee. The defendant was tried, convicted and sentenced to be confined at hard labor for the term of two years in the penitentiary at Columbus, Ohio.

At the trial it appeared that the letters taken had been mailed for the purpose of detecting the defendant; in other words, were "decoy" letters; and thereupon the defendant asked the court to instruct the jury that, as the letters taken were mailed for the purpose of entrapping defendant into the commission of a crime, there could be no conviction of the defendant for the taking of said letters.

The refusal of the court to so charge is the subject of the first assignment of error.

Syllabus.

To dispose of this assignment it is sufficient to cite the case of Goode v. United States, 159 U. S. 663, where it was held that, in an indictment against a letter carrier charged with secreting, embezzling or destroying a letter containing postage stamps, the fact that the letter was a decoy is no defence. Error was likewise assigned to the refusal of the court to charge that there was a fatal variance between the indictment and proof in respect to the description of the letters, for the stealing or embezzling of which the defendant was indicted.

In the indictment it was averred that the letters in question had come into the defendant's possession as a railway postal clerk, to be conveyed by mail and to be delivered to the persons addressed. It was disclosed by the evidence that the letters and money thus mailed belonged to the inspectors who mailed them, and were to be intercepted and withdrawn from the mails by them before they reached the persons to whom they were addressed.

There is no merit in this assignment. The letters put in evidence corresponded, in address and contents, to the letters described in the indictment, and it made no difference, with respect to the duty of the carrier, whether the letters were genuine or decoys with a fictitious address. Substantially this question was ruled in the case of Goode v. United States, above cited.

The judgment of the court below is

Affirmed.

BRYAN v. KALES.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

ARIZONA.

No. 198. Submitted December 19, 1895. Decided April 183, 1896.

When a mortgagee is in possession of the mortgaged real estate, claiming under a foreclosure sale, one claiming under the mortgagor cannot, by setting up that the foreclosure proceedings were invalid, maintain ejectment to recover the premises, without first offering to redeem and tendering payment of the mortgage debt.

Statement of the Case.

THIS was an action of ejectment brought August 12, 1887, in the district court of the Second Judicial District of the Territory of Arizona, county of Maricopa, by T. J. Bryan against M. W. Kales, to recover possession of a tract of land in that county containing 160 acres. The case was tried by the court, a jury having been waived, and on December 6, 1890, judgment was entered for the defendant, whereupon the plaintiff appealed to the Supreme Court of the Territory of Arizona. In that court the case was heard upon an agreed statement of facts, and the judgment of the district court was affirmed. The plaintiff then appealed to this court.

The facts, as they appear in the agreed statement, are substantially as follows:

On May 26, 1882, one Jonathan M. Bryan, who then owned the S. E. of section 2, T. 1 N., R. 3 E., Gila and Salt River meridian, being the land in controversy in this action, executed to the said M. W. Kales his promissory note for the sum of $5615, payable May 26, 1883, with interest at the rate of one and one half per cent a month, and, to secure the same, on the said date he and his wife, Vina Bryan, executed and delivered to Kales a mortgage of all the said land.

On August 29, 1883, Jonathan M. Bryan died intestate, leaving Vina Bryan, who was his wife at the time he acquired the said property, his widow and sole heir. On September 13, 1883, the said M. W. Kales filed his application for letters of administration in the probate court of the said county wherein Jonathan M. Bryan resided at the time of his death, and in which the said land was situate, and such proceedings were had thereon that Kales was duly appointed administrator of Bryan's estate on September 24, 1883. He proceeded in the administration of the estate until December 6, 1884, when the administration was closed, and he was discharged from his trust. In such proceedings the said property was not distributed.

Kales, while he was so acting as administrator, and while he was the owner of the note and mortgage, brought an action in the district court of the Territory of Arizona, by a complaint filed October 3, 1883, in which he, M. W. Kales, as