#### ABEL GARDNER *v.*ROSWELL A. KING.

On a guaranty of a bond, the condition of which bond was that the obli-gor should at a certain time pay a certain sum of money “ on receiving from the obligee a title” to certain land, the plaintiff cannot recover without shewing a tender of a deed for the land to the obligor.

Ja such a case it is not necessary to shew a demand on the obligors for the money. The case of *Miller*v *Irvine,*1 Dev. & Bat. cited and approved.

An appeal from Guilford Superior Court of Law, at Spring Term, 1842, his Honor Judge Dick presiding.

This was an action of Assumpsit, brought by the plaintiff on the undertaking of the defendant, written on a bond of John Rutter and Samuel Swartwout, which bond, with the condition and endorsement of the defendant, are in the words following, to wit:

“ Know all men by these presents, that we, John Rutter and Samuel Swartwout, of the Cityr of New York, are held and firmly bound unto Abel Gardner, Senior, of Guilford county, in the State of North Carolina, in the sum of fourteen thousand and eighty dollars, lawful money of the United States of America, to be paid to the said Abel Gardner, Senior, his executors, administrators or assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents, sealed with our seals, and dated the 14th day of April, 1838.

“ Whereas, the said Abel Gardner, Senior, was appointed commissioner by a decree of the Court of Equity of Guil-ford county, made at February Term, 1837, for the sale of certain land in the said county, and whereas at the sale of said lands, in pursuance of said decree on the 1st day of April, instant, the above bouuden John Rutter became the pur*298chaser of a certain tract containing eighty-two acres, with a<^ition °* two acres called Gardner’s Gold Mine, of Guilford county, at the price of seven thousand and forty-two dollars; and whereas the said land was so sold on a credit of two years, with the condition that the purchaser should give to the commissioner security for the payment of said purchase money at the expiration of the said two years, and» also, that the title should not pass to the said purchaser until the payment of the said purchase money,' according to the aforesaid decree: Now the condition of this obligation is such, that if the said John Rutter, or his personal representatives or assigns shall, at the expiration of two years from the said first day of April instant, on receiving a title to said land, well and truly pay or cause to be paid to the said Abel Gardner, Senior, commissioner as aforesaid, the said sum of seven thousand and forty-two dollars, then this obligation to be void, otherwise of force.

JOHN RUTTER, (Seal.)

SAMUEL SWARTWOUT, (Seal.)

Sealed and delivered in the presence of

Henry Ogden,

John B. Sickles.”'

The following endorsement appeared on this bond, to wit:

“I, Roswell A. King, do hereby guarantee and bind myself and heirs to Abel Gardner, commissioner, for the payment of the amount of the within bond. May 16th, 1838.

ROSWELL A. KING.”

For the plaintiff it was proved that the forgoing bond was executed in the City of New York and brought to North Carolina; that the defendant was called on to say whether or not the bond was good, and he replied that it was. He was then informed that the obligee declined to accept the said bond, unless he would guarantee it, The defendant thereupon consented to do so, and in pursuance of this purpose the endorsement above mentioned was written by the plain-üff’s agent, and signed by the defendant. The bond so en*299dorsed was then delivered to the obligee, and by him accepted. There was no proof of a request by Rutter or Swar-twont to the defendant, to guarantee, or in any way to become bound, for the payment of the bond. No proof was offered of demand by the plaintiff, or any one in his name on the. obligors, Rutter and Swartwout, for payment of the bond, or of any steps having been taken to collect it, or of tender by the plaintiff or any one for him of a deed for the land mentioned in the condition of the bond. There was no proof offered of notice by the plaintiff to the defendant of the default of the obligors, although he was informed, before the bringing of this suit, that he was and would be held responsible.

Upon this evidence the defendant objected to the plaintiff’s recovery; 1st, Because the condition of the bond required that a deed for the land should have been tendered before payment could be required, and, there being no evidence of this, there was no breach; 2dly, That there was no evidence of consideration for the guaranty. His Honor having intimated that a demand on the obligors and notice of their default were necessary, the plaintiff, in submission to this opinion of the -court, suffered a -nonsuit and appealed.

*Badger*for the plaintiff.

*Waddell*and *Iredell*for the defendant.

Gaston, J.

The defendani in this case can be held responsible only to the extent of his engagement, and this cannot be construed to bind him further than that the obligors in the bond, which he guaranteed, should tnakejjpayment ac-, cording to its terms. These terms are explicit. The obli-gors are to pay “ at the expiration of two years from the date, on receiving from the obligee a title to the land.” The recital in the condition may properly be considered for the purpose of elucidating the meaning of the terms, where they are at all ambiguous; but there is nothing ambiguous in them. The payment of the price of the land is to be made upon receiving the title for the land, so that the receipt of title and payment of the purchase money are to be com *300current acts. Nor is there any thing in the recital, incon-s*stent with this construction. The recital indeed declares that the title is not to pass until the payment of the purchase money. — it shall not *precede*the payment — but it does not thence *follow*that it may not *accompany*the payment of the purchase money.

It is tobe regretted that the bond was taken in this form. In judicial sales, the securities taken for the purchase money should be peremptory for the payment of the money at the appointed day. The purchaser is to rely on the court for obtaining his title, who will take care that justice is done him.

Upon this ground — that a tender of a deed was not shown. — we feel ourselves bound to affirm the judgment below. The acceptance of the bond was a sufficient consideration lor the defendant’s guaranty, and that consideration, if it did not appear on the face of the guaranty, might be provr ed by parol. *Miller v Irvine,*1 Dev. & Bat. 403. It was not necessary to prove a demand upon the obligors for the payment oí the money. The most that could be required was, to shew that the defendant had notice of a default on their part to make payment, as stipulated, before suit brought against him.

Per Curiam, Judgment affirmed.