Cock, Assignee v. Taylor

2 Tenn. 49

• Court: Tennessee Superior Court for Law and Equity
• Decided: September 6, 1809
• Status: Published

Opinions

This was an action brought on a bond, given by the defendant to Stephen Bean in the year 1800, containing a covenant to convey part of a 500 acre tract, with a reference to one of the lines of a tract which had previously been sold out of the same tract. The quantity, or particular boundaries, were not expressed. Plea, covenant performed,non infregit conventionem, and release; replications and issues on the first two pleas.

Oyer and demurrer, and joinder in demurrer, as to the last. The covenant was assigned by Stephen Bean to John Bean, in the year 1801; and by John Bean to the plaintiff, in the year 1806. This covenant was signed by the defendant and Stephen Bean; nor is any time within which the title should be made expressed in it. In it there is a covenant, on the part of Bean, in these words: "for which land, said Bean does promise to pay said Taylor one dollar fifty cents per acre." And on the part of Taylor it was covenanted, that, if the land should be lost by better claims, he was to refund the price received. The jury having been sworn on the issues.

On the part of the plaintiff, evidence was given showing the bounds of the 500 acre tract; the part that had been sold previous to giving the bond; and the quality of the part unsold, which lay in the direction from the line of the part sold, as described in general terms in the bond. The construction of all instruments of writing is matter of law for the Court; and not of fact for the jury. The precise quantity, quality, and bounds of the lands are left open by the covenant; parol proof may be adduced to those points; but not as to the meaning of the covenant so far as it goes.

M'KENNEY then offered the same instrument of writing, which was pleaded as a release in this cause, in the following words: "State of Tennessee, Carter County. I, John Bean, of Grainger county, do hereby acknowledge that Nathaniel Taylor has fully complied with an article that he. Taylor, entered into with me, as to a tract of land in Grainger county; it being the place where I now live, c., which he, Taylor, sold me, and bound himself, in an article, to convey to me,c., which land, I do acknowledge he, Taylor, has conveyed to me as he was bound to do; and the article he, Taylor, gave me, binding to convey the land, is null and void and I will give it up to him, Taylor, or heirs, e. And further, I do acknowledge that I have no other article or instrument of writing on said Taylor, binding him to convey land, but which is hereby made void. As witness my hand and seal this 21st March, 1807." Test,c. JOHN BEAN (Seal).

It was insisted that this was evidence of a satisfaction of the, covenant under the plea of covenant performed.