#### Samuel Guthrie *v.*James Jones.

Jones, the defendant, purchased a tract of land of Guthrie, the plaintiff, for which he gave two sealed notes for $50 each, one payable on the 25th of December, 1836, the other on the 25th of December, 1837. The plaintiff by a separate instrument in the form of a bond covenanted and agreed with the defendant “ to make him a good and lawful title to the land *if the notes were paid.”*Held that, until the actual payment of the notes, the plaintiff was not bound to make titles to the land and that his failure to do so in the mean time furnished no ground of defence to an action on either note.

*Before EVANS, J., at Spartanburg, Spring Term,*1839.

The report of this case, by his honor, the presiding judge, is as follows:

“ This was a summary process on a sealed note for $50. Defendant purchased a tract of land from plaintiff, and gave two ndtes, each for $50, one payable.25th December,'1836, the other 25th December, 1837. Unon this last note the action was brought. It was not proved whether the first was paid or not. The plaintiff made no title, but gave a penal bond to “ make a good and lawful title ” to the land, *if the notes were paid.*Before this action *445was brought, Jones sold the land to Price, who was ready to pay up the note, if a good title was made. Jones called on Littlejohn, the plaintiff’s agent, who held the note, and told him Price would pay for the land, if the title was good. They went to Price, and Littlejohn produced a deed executed by Guthrie and wife, in Arkansas. It was in form nearly like the deed of bargain and sale, prescribed in the act of assembly of 1795, 2 Faust, 5, but there was but one witness, and there was no clause of general warranty. Price refused this title, and the note was then sued. The plaintiff contended — 1st. That Jones was bound to pay the money without any title, and must look to his bond. 2d. That the title produced was such as Guthrie was bound to make.

I did not consider-the making a.title as a condition precedent to be averred and proved; nor was the plaintiff bound to tender a title before suit brought. The covenant as originally made, was independent, and the plaintiff not bound to make a title until he was paid the price, as was decided in Davis v. Woodward, 2 Const. R. 56. But in this case the money had been tendered, .or to speak more accurately, was ready- and not paid, because the title was objectionable. I thought therefore, after this demand, the plaintiff could not coerce payment by law, until he tendered such a title as he was bound to make by his bond. Whether the deed tendered was such as the party was bound to make, is a question not free from difficulty. It is not good as a feoffment, for want of livery of seizin. It is not a-lease or release, and is not good unless as a bargain and sale. Whether that form of conveyance was used in this State before the act of 1795, and thérefore recognised by the act as a valid form, I was of opinion the obligation of the plaintiff required of him to give the defendant a dee.d with a general warranty, and as this deed is defective in this particular, the plaintiff cannot recover.”

The plaintiff appealed, and now moved to reverse the decree of his honor, because the decree is contrary to law and evidence; the payment of the money being a condition precedent to the delivery of the deed; the tender to Littlejohn being no tender to the plaintiff, and the deed offered being agreeably to the condition of *446the bond, the defendant’s remedy was on the bond and not by way of defence.

Cum a, per Earle, J.

The decree of the circuit court can only be sustained, on the ground that this is a case of dependent and concurrent covenants ; and although the payment of the money was the consideration for which the title was to be made, yet that they were acts to be mutually performed at the same time. And if the defendant was ready to pay, and offered to pay, he did all that was necessary to entitle him to demand performance, on the part of the plaintiff. If this be the true construction, then the plaintiff could not recover, without averring and proving like.readiness, and offer to perform on his part. Now, as the plaintiff held the defendant’s note, which is a direct and unconditional engagement to pay a sum of money, on a day certain, without reference to any act to be done by him before the day, he had only to sue, and declare on it, in the usual form, after the day was passed. — ■ The defendant held the plaintiff’s bond, in a penalty, with condition to make titles, if the notes were paid. If the defendant had brought an action on the bond, he must have averred payment of the notes, in the declaration, and would have failed at the trial, without proof of actual payment. An offer to pay, even an actual tender of the money, but withholding it because the title was not made, would not have sufficed. The actual payment of the money by the defendant, was a condition precedent, before he could demand a conveyance. Such would be the const ruction, if the agreement to pay the money, as exhibited in the note, and the covenant to make titles, as exhibited in the condition of the bond, were contained in one deed, executed by both. The intention of the parties would be manifest from the terms employed. It is more clearly manifested, by executing separate instruments, the defendant giving notes payable at different, but certain days; and the plaintiff giving his bond, to make titles if the defendant paid the notes. If the defendant could not have demanded a coveyance, on payment of the first note, he could not until after payment of both. And if without actual payment, he was not entitled to have *447a conveyance, it is immaterial to the issue, whether the conveyance executed by the plaintiff, was a good and lawful title, or not. It is enough, as said by the court, in Davis v. Woodward, 2 Const. Rep. 56, (Mill.,) if he shall be ready to perform his engagement, when the notes shall be paid. If he fails, then, to make such a conveyance as his bond calls for, he must suffer the consequences of his failure. We cannot agree that the execution .of an imperfect conveyance before any could be demanded, changed the position of the parties, or the condition of the covenant; that it relieved the defendant of any obligation, or waived any right on the part of the plaintiff

*Henry*& *Bobo,*for the motion.

*II. H. Thompson,*contra.

The motion to set aside the decree of the circuit court is granted, and a new trial ordered.

O’Neall, Evans and Butler, Justices, concurred.