#### *Brockenbrough v. Ward’s Administrator.

June, 1826.

Demurrer to Evidence — Joinder—When Not Compelled.† —The Court ought not to compel a plaintiff to join, in a demurrer to evidence, if the evidence set forth in the demurrer shews that the plaintiff ought to recover.

Action for Money Had and Received.‡ — In what cases an action for money had and received is the proper action.

Covenants — Dependent—independent.—Covenants are dependent or independent, according to the intention and meaning of the parties, and the good sense of the case.

Action for Money! — Case at Bar. — When a day is appointed for the payment of money, and the day is *142to happen after the thing-, -which is the consideration of the money, is to he performed, no action can he maintained for the money before performance.

An appeal from the Superior' Court of Law for Essex county.

The administrator of Joshua Ward brought an action of assumpsit for money had and received, against Austin Brockenbrough. The defendant pleaded non assumpsit; and issue joined. At the trial, the defendant tendered a demurrer to the plaintiff’s evidence, and moved the Court to compel the plaintiff to join therein; but the Court overruled the motion, and the defendant excepted. The evidence set forth in the demurrer is fully stated in the following opinion.

“Stanard, for the appellant,

- No Counsel, for the appellee.

*

The Prksidknt absent.

†

Bemurrer to Evidence — Joinder—When Compelled. —See monographic *note on*"Demurrer to the .Evidence” appended to Tutt v. Slaughter. 5 Gratt. 364. The principal case is cited on this subject in Boyd v. City Savings Bank, 15 Gratt. 503.

‡

Assumpsit — When it Lies — Money Paid on Contract. —Where a contract for the sale of land is not by deed, and no conveyance has been made, the vendee can recover back in an action of *assumpsit*what he has paid on the contract, when the consideration has failed, or the contract has been rescinded, or the vendor refuses to comply with his part of the contract. Bier v. Smith, 25 W. Va. 832. citing principal case as authority. See principal case also cited in Boissean v. Bass. 100 Va. 211, 40 S. *E.*Rep. 649. See also, monographic *note*on "Assumpsit” appended to Kennaird v. Jones, 9 Gratt, 183.

§Gove«ants — Dependent— Independent, — in B. & O. R. Co. v. McCullough, 12 Gratt. 597, it is said: "Stipulations in a covenant or other contract are to be regarded as dependent or independent, according to

*142the intention and meaning of the parties, and the good sense of the case. Hotham v. East India Company, 1 T. R. 638; Porter v. Sheppard, 6 T. R. 665; Campbell v. Jones. 6 T. R. 570; Morton v. Lamb, 7 T. R. 125. And where an act is to be done by one party by way of condition precedent to his right to claim performance on the part of the other, he cannot claim such performance without averring the doing of such act or his readiness and offer to do it. Thorpe v. Thorpe, Lord Raym. 662; Collins v. Gibbs, 2 Burr. R. 899; *Brockenbrough v. Ward,*4 *Rand.*352.”

To the point that covenants are dependent or independent according to the intention and meaning of the parties and the good sense of the case, and that technical words should give away to such intention, the principal case is cited in Snodgrass v. Wolf, 11 W. Va. 165; Weaver v. Burr, 31 W. Va. 780, 8 S. E. Rep. 766. See the principal case also cited in Metropolitan L. Ins. Co. v. Rutherford, 95 Va. 779, 30 S. E. Rep. 383.

See further, monographic *note*on "Covenants” appended to Todd v. Summers, 2 Gratt. 167.

June 9.

JUDGE CABELL

delivered the opinion of the Court. ǁ

This was an action on the case, for money had and received by Brockenbrough, the defendant, for the use of Ward’s intestate, the plaintiff in the Court below. On the trial, the defendant, Brockenbrough, tendered a demurrer to the testimony, and moved the Court to compel the plaintiff to join therein, which motion was overruled *by the Court; to which opinion, the defendant excepted. There was a verdict and judgment in favor of the plaintiff for $2,698, from which Brockenbrough appealed to this Court.

It was very fairly and properly admitted by the counsel for the appellant, that if the evidence set forth in the demurrer shews that the plaintiff was entitled to recover in this action, the judgment of the Superior Court must be affirmed.

The case made in the demurrer is substantially this: On the 16th of January, 1810, Austin Brockenbrough, the appellant, and Joshua Ward, the intestate of the appellee, entered into articles of agreement, under their hands and seals, by which Brockenbrough agreed to sell to Ward a tract of land to which he was entitled in right of his wife, for the price of 1,2361. which price, Ward agreed to pay, with interest from the date of the agreement, at two instalments, the first of which was to become due on the 1st of January, 1811. It was stipulated that Ward should assign to Brockenbrough, on demand, a good bond for 601. and also three other bonds executed by one Cotterelt, due in 1816,1817 and 1818; which bonds were to be assigned to Brockenbrough as a security for the purchase money of the land t that Brockenbrough and wife were to make Ward a deed for the land, in a convenient time, and Ward was to make Brockenbrough a mortgage on the land, to secure the payment of the purchase money, with the interest thereon. Brockenbrough* moreover, agreed to take slaves at valuation, in payment of the purchase money, as it should become due. Ward was to take immediate possession of the land, and hold it under the agreement. He took possession accordingly ; but he left the country in 1811, and has not since been heard of. Brockenbrough re-possessed himself of the land, (at what particular time is not stated,) and sold and con veyed in fee simple to one Healey, at the price of five dollars, per acre, being the best price which could-then be had for the same; and the wife of Brockenbrough, (who *was the owner of the fee,) joined in the conveyance, and has since died. Brockenbrough received the money due on Cotterell’s bonds, and on being applied to by Ward’s representative some time in 1818, to-pay the same, said he would pay it after deducting the loss he had sustained in the second sale, which was three dollars per acre.

The question is, whether Ward’s representative is entitled to recover, under the circumstances above stated, the money received by Brockenbrough on account of Cotterell’s bonds.

Cotterell’s bonds were assigned to Brockenbrough, not in payment for the land, but merely as a security for the payment of the purchase money. So long, therefore, asBrockenbrough had a right to demand the purchase money of the land, he had a right to retain in his hands Cotterell’s bonds, or so much of the money received therefor, as-should not exceed the purchase money and interest. But, so soon as the purchase money, with the interest, should be paid, or the purchaser should be forever discharged from the liability to pay it, it would be manifestly unjust for the vendor to retain what he had received merely as a pledge or security for the purchase money. He became bound, ex cequo et bono, to restore it; and the action of assumpsit for money had and received, is the proper action to compel him to do so.

It becomes necessary, therefore, to en-quire into the character of the covenants between the parties in this case. If they were independent, it would be no objection to an action brought by Brockenbrough for the purchase money, that he had not complied with the covenant on his part. But, if the covenants were dependent; if the covenant, on the part of Brockenbrough to convey the land, was a condition precedent to the obligation on the part of the purchaser to pay the purchase money, without alleging a conveyance, or a tender to convey; he could maintain no action for the purchase money, without alleging a conveyance or a tender to convey.

*“Covenants are to be considered to-be either dependent or independent of each other, according to the intention- and meaning of the parties, and the gootS *143sense of the case, and technical words should give way to such intention.” Pordage v. Cole, 1 Saund. 319, note 4. Hotham v. East India Company, 6 Term Rep. 571. Porter v. Sheppard, Ib. 668. Campbell v. Jones, Ib. 571. Moreton v. Lamb, 7 Term Rep. 130. Here Brockenbrough was to convey in convenient time; but that stipulation is limited and explained by the subsequent stipulation that Ward was to give a mortgage to secure the purchase money, the first instalment of which was to fall due on the 1st of January, 1811. This clearly and incontestably proves, that the parties intended that Brockenbrough should convey the land, before the purchase money was payable. Now, it is settled law, that when a day is appointed for the payment of money, and the day is to happen after the thing, which is the consideration of the money is to be performed, no action can be maintained for the money, before performance. Thorpe v. Thorpe, 1 Salk. 171, 2d resolution. Pordage v. Cole, 1 Saund. 319, note 4. Brockenbrough’s covenant was, therefore, a condition precedent to his right to demand the purchase money; and as his conveyance of the land to another, has forever put it out of his power to comply with that condition precedent, it follows, that Ward’s representatives can never be under any obligation to pay the purchase money, and consequently, that Brockenbrough is bound, ex oequo et bono, to restore what he had received merely as a pledge to secure its payment.

The judgment is affirmed.

ǁ

 The President and Judge Coalter absent.