The appellee sued the appellant upon the following instrument:
“ I have this day sold to Andrew Lawlor the following described real estate, lying in Tippecanoe county, in the State of Indiana, to wit: Seventeen acres of the east half of the south-east quarter of section four (4), north of range three (3) west, being thirty-four poles north and south of the north end of said tract; upon which I have received one hundred and fifty dollars, and am to receive one hundred and fifty dollars, December xst, 1873, one hundred dollars December 1st, 1874, both deferred payments with interest from this date. Notes and mortgage to be executed for the deferred payments as soon as deed is made. Now, I hereby agree to cause to be made to him a deed of conveyance for the aforesaid lands on or before January 1st, 1873, and if I fail to make such deed I am to repay to said Andrew Lawlor the aforesaid sum of one hundred and fifty dollars, with interest from this date, and one hundred and sixty dollars agreed damages, collectible without any relief from valua*82tion or appraisement laws. Given under my hand and seal, this 24th day of August, 1872. Asa Huff.”
The complaint alleged the execution of the foregoing instrument and the payment of one hundred and fifty dollars, and that the plaintiff stood ready to make and deliver his notes and mortgage for the deferred payments, when the deed of conveyance should be made, at the time mentioned in said written agreement. The complaint then concludes as follows : “And the plaintiff avers and charges that said defendant did not make or cause to be made to the said plaintiff the said deed of conveyance, or to perform his part of said agreement. Judgment was demanded for the one hundred and fifty dollars paid in part performance of said contract, and for the further sum of one hundred and sixty dollars for the damages agreed upon.”
It appears from the record, that the appellant was duly served with process, and being called, he failed to appear and was defaulted. Subsequently the appellant moved to set aside the default, but the motion was overruled. The damages were assessed by the court.
The appellant has assigned for error that the complaint does not contain facts sufficient to constitute a cause of action, and that the court erred in overruling the motion to set aside the default.
It was held by this court, in Strader v. Manville, 33 Inch 111, that where a judgment has been taken by default, on a complaint which does not state facts sufficient to constitute a cause of action, the defendant may appeal to the Supreme Court and assign for error the insufficiency of the complaint, without having made a motion for relief in the court below.
The objection urged to the complaint will be made manifest from the following extract from the brief of counsel for appellánt:
“ This is one of the class of contracts where the acts to be performed by the parties are concurrent and simultaneous. A court of equity would compel neither to perform *83until the other had offered to perform, and he who would take the initiative must have offered to perform his part of the contract. If neither had tendered a performance, the , condition of the defendant was the best. The- court will notice that the contract reads, as soon as the deed is made, appellee is to execute notes and mortgage, etc. He is not to wait until the deed is executed and delivered, but when made, then he is to execute the notes and the mortgage. Then it is clear that he should have tendered the notes and mortgage before he was at liberty to treat the contract as at an end and sue to recover back the money he had paid, and for the damages. Or at any rate, there should have been a demand and refusal.' , In that case an offer to perform would not have been necessary. The contract does not show on what lands the mortgage was to operate. A pleading is to be taken most strongly against the pleader; so the court can not say that the mortgage securing the notes was to be upon the lands agreed to be conveyed.”
The positions assumed by counsel for appellant are, in our opinion, untenable. The making of the deed by the appellee and the execution of the notes for the deferred payments and the mortgage to secure the notes were not concurrent acts. The appellant was required to execute the deed on a day named. In such case, no demand was required. Mather v. Scoles, 35 Ind. 1. The appellant was required to make the deed, before the appellee was required to give his notes and mortgage. The making of the deed constituted a condition precedent to the giving of the notes and the execution of the mortgage. While it is not expressly provided in the written agreement, that the mortgage was to be taken upon the property to be conveyed, it is plainly inferable from the whole instrument that such was the intention of the parties. The appellee could not give a mortgage upon the land until it was conveyed to him. The signature and acknowledgment of appellant -to the deed would not make it operative as a conveyance. Delivery was essential to it.s valid execution and operation as a deed of conveyance. Hotchkiss v. *84 Olmstead, 37 Ind. 74, andauthorities there cited. The appellant was not required to make an unconditional delivery of the deed, but he should have signed and acknowledged the deed and tendered it to the appellee, on the condition that the notes and mortgage were executed. Lynch v. Jennings, 43 Ind. 276. The appellee was not required to tender the notes or mortgage prior to the execution of the deed. In our opinion, the complaint was good, and the facts stated entitled the appellant to the relief demanded and granted.
We proceed to enquire whether the court erred in refusing to set aside the default. Upon an examination of the record, we find that the clerk has copied into the transcript what purport to be the affidavits which were read in support of the motion to set aside the default; and in copying into the transcript the bill of exceptions, he has filled the space which was intended for an insertion of the motion and affidavits with a reference to the lines and pages of the record where such motion and affidavits would be found. This condition of the record presents the same question which arose and was fully considered in the case of Kesler v. Myers, 41 Ind. 543. For the reasons there stated, we hold that the motion and affidavits constitute no part of the record, and that no question arises as to the action of the court in overruling such motion.
The judgment is affirmed, with costs.