#### Robert H. Smith *v.*William B. Shepard,

From Perquimons.

if a question of Jaw be improperly submitted to a Jury, and they decide it correctly, a new trial will not be granted.

The obligor must show, either that he has fully complied with the condition of his bond, or has offered to-do so. Therefore a condition to convey an equal and fair portion, a half of a certain tract of land belonging to the obligor, is not performed by an offer to convey a certain tract by metes and hounds, without proof of title, or the fairness of the division. Neither is the condition performed by an off-r to convey an undivided interest less in quantity.

If damages are given beyond the penalty, and that is the only error on the record, the judgment will be reversed as to the excess alonev

Debt upon a bond for three thousand dollars, dated April 21st, 1824, will) the following condition : “ that “ *£V. B. Shepard*shall as soon as the thing is practica- *“*ble, and the situation of the country will admit, convey “ in fee simple, to *R. IL*Smith, one equal and fair por- *“*tion, a half of a tract of land of three thousand acres “ belonging to said *Shepard,*and lying on Obian River, “ in the State of Tennessee.

The pleas were “ conditions performed and not broken, and tender and refusal.”

On the trial, the Defendant proved the tender of two deeds to the PJaintiftj before the commencement of the action. The first dated the 8th of March, 1825, assured ..to the Plaintiff in fee, a tract of land il lying and being in the State of Tennessee, in the county of Weakly, on the middle branch of the south fork of the Obian River, being a part of two patents granted to *John G.*and *Thomas Blount.*Beginning &c. containing 1500 acres,”

By the second deed, dated 18th of April, 1825, a tract of land was conveyed to the Plaintiff in fee, described as “ one undivided half of the ninth part of a tract of land, in the Stale of Tennessee, beginning at &c. on the *462south fork of Qbiau River, running thence, &c. contain-irig by estimation, twenty-four thousand acres.”

it was in proof that the Defendant had title to onc-n‘mth of the land described in the last recited deed, that the land liad been identified before the summer of 1824, and that the county of Weakly, within which the land was situate, had been established at that time, and Courts of Justice opened therein.

His honor Judge Martin, left it to the Jury to determine whether the tender of the deeds was in substance and effect, a tender of such a conveyance as was required by the condition of the bond, and informed them they were to enquire into the value of the land, and were at liberty to give interest upon that value, provided it did not, with the- damages, exceed the penalty of the bond. The Jury returned a verdict for the Plaintiff, to the amount of the penalty, and gave interest thereon from the date of Use writ,- whereupon the Defendant appealed.

*Gaston,*for tiie Defendant,

contended that there was manifest error in leaving it to the Jury to decide whether the deeds set forth in the case, were such conveyances as were required by the condition. He argued that this was a question of law, which should have been decided by the Judge.

He also insisted, that it was not the duty of the Defendant to tender the deed, but that it should have been prepared by the. Plaintiff and tendered to the. Defendant; for ibis he cited *Webb*v. *Bethel,*(1 *Lev. 44)*— Esp. *R.*190.

*Hogg*& *Badger,*for the Plaintiff,

admitted that the question as to the sufficiency of the deeds, had been improperly left to the Jury, hut' they insisted that the Jury having decided the. question proposed to them correctly, (hete was no ground for a new trial. They then argued to prove, that by neither of the deeds tendered, had the Defendant complied with the condition of the bond.

*463HeNDERsoíí, Judge.

{think very dearly, that the, question, whether the deeds tendered were such as the condition of the bond required, was one of law ; for what were the obligations of the Defendant, was a question of law, and the deeds being offered in performance of those obligations, the same tribuual therefore should decide both. What *ought*to be done, was a question of law, what *had*been done, one of fact. But as the Jury came to the proper conclusion, the Judge was right in refusing a new trial.

The bond required an equal and fair .portion, a half of a tract of three thousand acres, *belonging to the said Shepard,*and lying on the Obion river, in the State of Tennessee. The deed of the'8th of March, 1825,'was for fifteen hundred acres, lying in the State of Tennessee, in the county of Weakly, on the south fork of the-Obiou river, being part of two patents, granted, &c. This may be a part of the lands owned by *Shepard,*at the date of the bond, and it may be an equal and fair portion, a half of a tract of three thousand *acres;*but these facts do not appear. *Shepard*may not have owned the land at the date of the bond $ it may not be the half of a 3000 acre tract, and if it is, it may not be an equal and fair portion, it may be the most inferior part, *Non constat*therefore, that the obligations of the bond were offered to be performed. As to the deed of the 18th of April, 1825, it is still more defective. It is deficient in quantity, and it has all the defects before pointed out, except that as tenant iti common, the grantee would be ^entitled to a fair partition. It is for one-half of one-ninth of 24,000 acres, less by nearly one hundred and sixty acres than *Shepard*was bound to convey.

But as the Jury assessed the damages beyond the penalty of the bond, and as a judgment has been rendered according to the verdict, the judgment must be reversed as such excess in damages. The judgment therefore is, that the Plaintiff recover three thousand dollars, with *464interest thereon from the rendition of the judgment in the Court below, with costs of that Court. This Court having reversed in part the judgment of the Superior Court, the Plaintiff must pay the costs here.

Per Curiam. — Judgment affirmed.