Year: 1866

JUDaEs-SAM MILLIGAN, JAMES G. SHACKELFoRD,


AND ALVIN HAWKINS.


THOMAS d. CALDWELL, Attorney General and Re-


porter.


R. B. DAVIDSON Us. s. W. JOURDAN


This is an action brought by the plaintiff in error
against defendant for breach of covenant. 1t ap-
pears defendant sold to plaintiff house and lot in
Shelbyvlle for l25, taking his notes payable at
future day. Defendant gave his bonds for title with
covenants of warranty upon the payment of pur-
chase money. judgments were obtained by defen-
dant the notes. and on the 18th May, 1860, plain
tiff in error paid the balance of purchase money
On 2lst of May, 1862 plaintiff rendered deed in
conformity with the bond to defendant and request
ed its execution. The defendant expressed a will
ingness to execute it-sad he would be in the town
the Saturday following and fix it up-plaintif in
error leaving the impression defendant at that
time, that if executed in reasonable time he would
be satisfed-to use the language of the witness.


He told Davidson that Jourdan said to him he did
not understand Davidson to be in a hurry for him
to execute the deed and that he acted under that i'm
PRESTON and had not executed the deed at that time
and that Davidson did not deny that Jourdan was
under that impression from what passed. The de-
fendant came to town on the following Saturday to
see his attorneys-one sick, the other absent on
professional business. On the 9Th of July, 1860,
deed was prepared and executed by defendant in
pursuance of the bond, which was rendered by the
defendant in error on that day and refused the plain
tiff in remarking it came too late The breaches
averred in the declaration on the covenant the
defendant did not on the day the deed rendered
to him execute the same, nor did he the Saturday
following, after the deed had been prepared, keep
and perform his covenant to which defendant plead
covenant performed, and that he did on the 9Th of
July, 1860, prepare and execute and tender deed
in conformity to the bond before the bringing of the
suit. The suit was brought on the 18th of july
1860. A judgment was rendered for defendant from
uh hoa pd tO
There is serious objection urged to the charge of
the court. The court charged the jury it incum
bent on the defendant in error to execute deed in
pursuance of the bond on payment of the purchase
money, when rendered to him, and If before the in
stitution of the suit the defendant executed deed
in conformity with the bond and rendered to plain
tiff it was bar to the sdit and if in fact he had not
executed and delivered deed in reasonable time
after the payment of the purchase money by plain
tiff yet he might waive his right Of action for such
delay, on condition that defendant would then make
him deed, and that then, in accordance with the
agreement he did prepare and sign deed and ten
der it TO the plaintiff in pursuance of the contract
and before the institution of the suit it good
defense to the action This is the substance of the
charge.


After the charge and before the jury returned the
plaintiff asked the Court to instruct the jury "If
Jourdan had the deed rendered to him on the 2ls of
May, 1860, and he said he would be in town next
Saturday and fix it, that was fixing the day on his
own time, and if he failed to comply at that time he
forfeited his bond and the plaintiffs right of action
accrued on the bond which the Court refused, leav
ing it to the jury to say what reasonable time


1t is insisted the Court erred in refusing to give
the instructions, and in not granting trial
The case Of Shaw and others VS.. Williams and 9TH
ers, Sth Humphreys, is cited and relied upon as an
authority controlling the principle of this. In that
case the party executing the agreement had title
to the land agreed to be conveyed, and bound him
self certain day specified to make good and suf-
fcient title with covenants of warranty SC. 1t is
well settled principle when the party binds him.
self TO execute deed on certain day specified in
the agreement covenant and no concurrent act is
to be done or performed by the vendee the vender
must at his peril, tender the deed within the time
limited if he fail to do the right of action ac-
crues without demanding decd. 8. Hump. 652.-
In the covenant in this suit the payment of the
money was a condition precedent that; being done
the defendant was bound to execute deed upon its
being rendered to him made in, pursuance of the
bond. The agreement of the parties subseq
made when the plaintiff in error rendered the deed
and requested its execution, and the promise of the
defen liant to fix it up the following Saturday did
not bring the case within the principle of Shane vs.
Williams. The agreement to postpone the eXecu-
ton of the deed and the promise of the defendant to
fix it up waiver of the right of action resulting
from the tender thus made and the execution of the
bond rendered before the institution of the suit
was good defense. 1t is manifest from the proof
the plaintiff created the impression on the mind of
defendant he could in reasonable time execute the
deed These facts were properly left to the jury un-
der the charge of the court.


There is no in the charge of the court or in
refusing the instruction. The Judgment will be af-
frmed. SHACKELFORD, Judge.


Attest: J. G. FRAZER, Clerk.