By JUDGE SAFFOLD.
This contest resolves itself entirely into the question, whether the covenants' of the parties respectively were dependent, or mutual and independent. For the plaintiff in error, it is argued that Chil-dress, the plaintiff below, was not entitled to recover, without proving that he was ready and able to convey a good title, as averred in his declaration, on the day appointed by the covenant, which facts were denied by the pleas; also, that the declaration is defective, because it contains no averment that Childress offered on the 1st of January, 1521, to convey a good title.
In support of these positions, reference is made to the [370]*370of the Bank of Columbia v. Hagner.
To these , rinciples, when applied to truly dependent covenants, I am prepared to yield my ready assent. The modern rules of decision, appear to have carried the idea of dependent stipulations, as far as established precedent will permit, on the ground that they have been foundunost safe and just. Nor would I contest the authority of the further remark contained in the same opinion, that “the time fixed for performance, is at law, deemed of the essence of the contract; and if the seller is not ready and able to perform his part of the agreement on that day, the purchaser may elect to consider the contract at an end.” But it is equally true, and so admitted in the same case, that “equity, which from its peculiar jurisdiction, is enabled to examine into the cause of delay in completing a purchase, and to ascertain how far the day named was deemed material by the parties, will in certain cases cany the agreement into execution, although the time appointed was elapsed.” The difference however between the case referred to, and the one under consideration, is so obvious, that the decision in the one, cannot be viewed as an authority for the other. And most of the remarks quoted, are to be considered as having been made with direct reference to the particular features of that case. There, the suit was founded on what is called a special agreement. [371]*371The material facts of the case cannot be presented in a view. They arose out of a correspondence between son, president of the bank, and the defendant, Hagner; they embraced a period of four years, and were contained in eleven letters and other documents, relating to the purchase of two lots of ground in the city of Washington, which the bank proposed selling to the defendant.
The Court said, “it was doubtful if any contract had ever been concluded between the parlies, previous to the date of the defendant’s letter of the 27th April, 1818, to the president of the hank; for whatever might have been the right of the bank to have closed the contract, in the terms of the letter of the 25th April, it was certainly waived by an acceptance of the modification, contained in the letter of the 27th April. Nor would any contract seem to be closed by this letter. It contained two distinct propositions by the defendant: the one to give his notes for the purchase money, payable in six quarterly payments, the first to be made on the 1st of October, then next, and to take a deed from the bank; the other to bind himself to pay the money at the times stated, and to take a bond for a deed, to be given when the whole purchase money was paid. This necessarily required some further answer from the plaintiffs, not only to signify their election between the propositions, but to do some further act in confirmation of such election, either to give the deed, or a bond for the deed.” Neither appears ever to have been done; but in that situation the matter rested for nearly three years, without any thing being done on the part of the bank to close the contract, or to intimate that they considered any contract in force, in relation to the purchase; and that not until the defendant had given them formal notice, that he considered the agreement at an end. It is true the defendant had previously accepted possession of the lots, and occupied them for a time, but relinquished the possession at or before the time he gave notice of his abandonment of the contract. This was a considerable time before.the institution of the suit, which was nearly two years after the lime fixed for performance. Nor was any offer made on the part of the bank to convey, until the day before the suit was commenced. Even then, the title offered, was shewn to be defective. Under these circumstances, the Court observed, that “the possession taken of the lots by the defendant, could at most, only be considered as a circumstance from which to infer, that he [372]*372^considered the contract closed; but could not deprive him of the right of relinquishing it, and restoring the possession, if the plaintiffs were unable to make a title to him, or neglected to do so. The possession was doubtless taken, under a belief that the contract would be performed by the plaintiffs, and a full title conveyed to him; but if the contract was unexecuted, the defendant had a right to disaf-firm it, and restore the possession, and would have sustained an action to recover back the purchase money, had it been paid.” This imperfect examination of the case referred to, is sufficient to shew an entire dissimilarity between it and the one before us; that, that was founded on undertakings, which in their nature were purely dependent, and consequently, that the reasoning of the Court in that case, must be understood as having direct reference to the facts.
The rules which have been adopted in various decisions, ancient and modern, for distinguishing dependent from, independent covenants, are often so nice and technical, that it is difficult to extract from them the true principle of distinction, and ascertain when it is necessary to aver performance in the declaration, and when not. In 1st Saunders,a it is said, “that covenants, &c. are to be construed to be either dependent or independent of each other, according to the intention and meaning of the parties, and the good sense of the case; and technical words should give way to such intention.” There, the following rules are recognised: 1st. if a day be appointed for payment of money, or a part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, is to be performed; an action may be brought for the money, or for not
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By JUDGE SAFFOLD.
This contest resolves itself entirely into the question, whether the covenants' of the parties respectively were dependent, or mutual and independent. For the plaintiff in error, it is argued that Chil-dress, the plaintiff below, was not entitled to recover, without proving that he was ready and able to convey a good title, as averred in his declaration, on the day appointed by the covenant, which facts were denied by the pleas; also, that the declaration is defective, because it contains no averment that Childress offered on the 1st of January, 1521, to convey a good title.
In support of these positions, reference is made to the [370]*370of the Bank of Columbia v. Hagner.
To these , rinciples, when applied to truly dependent covenants, I am prepared to yield my ready assent. The modern rules of decision, appear to have carried the idea of dependent stipulations, as far as established precedent will permit, on the ground that they have been foundunost safe and just. Nor would I contest the authority of the further remark contained in the same opinion, that “the time fixed for performance, is at law, deemed of the essence of the contract; and if the seller is not ready and able to perform his part of the agreement on that day, the purchaser may elect to consider the contract at an end.” But it is equally true, and so admitted in the same case, that “equity, which from its peculiar jurisdiction, is enabled to examine into the cause of delay in completing a purchase, and to ascertain how far the day named was deemed material by the parties, will in certain cases cany the agreement into execution, although the time appointed was elapsed.” The difference however between the case referred to, and the one under consideration, is so obvious, that the decision in the one, cannot be viewed as an authority for the other. And most of the remarks quoted, are to be considered as having been made with direct reference to the particular features of that case. There, the suit was founded on what is called a special agreement. [371]*371The material facts of the case cannot be presented in a view. They arose out of a correspondence between son, president of the bank, and the defendant, Hagner; they embraced a period of four years, and were contained in eleven letters and other documents, relating to the purchase of two lots of ground in the city of Washington, which the bank proposed selling to the defendant.
The Court said, “it was doubtful if any contract had ever been concluded between the parlies, previous to the date of the defendant’s letter of the 27th April, 1818, to the president of the hank; for whatever might have been the right of the bank to have closed the contract, in the terms of the letter of the 25th April, it was certainly waived by an acceptance of the modification, contained in the letter of the 27th April. Nor would any contract seem to be closed by this letter. It contained two distinct propositions by the defendant: the one to give his notes for the purchase money, payable in six quarterly payments, the first to be made on the 1st of October, then next, and to take a deed from the bank; the other to bind himself to pay the money at the times stated, and to take a bond for a deed, to be given when the whole purchase money was paid. This necessarily required some further answer from the plaintiffs, not only to signify their election between the propositions, but to do some further act in confirmation of such election, either to give the deed, or a bond for the deed.” Neither appears ever to have been done; but in that situation the matter rested for nearly three years, without any thing being done on the part of the bank to close the contract, or to intimate that they considered any contract in force, in relation to the purchase; and that not until the defendant had given them formal notice, that he considered the agreement at an end. It is true the defendant had previously accepted possession of the lots, and occupied them for a time, but relinquished the possession at or before the time he gave notice of his abandonment of the contract. This was a considerable time before.the institution of the suit, which was nearly two years after the lime fixed for performance. Nor was any offer made on the part of the bank to convey, until the day before the suit was commenced. Even then, the title offered, was shewn to be defective. Under these circumstances, the Court observed, that “the possession taken of the lots by the defendant, could at most, only be considered as a circumstance from which to infer, that he [372]*372^considered the contract closed; but could not deprive him of the right of relinquishing it, and restoring the possession, if the plaintiffs were unable to make a title to him, or neglected to do so. The possession was doubtless taken, under a belief that the contract would be performed by the plaintiffs, and a full title conveyed to him; but if the contract was unexecuted, the defendant had a right to disaf-firm it, and restore the possession, and would have sustained an action to recover back the purchase money, had it been paid.” This imperfect examination of the case referred to, is sufficient to shew an entire dissimilarity between it and the one before us; that, that was founded on undertakings, which in their nature were purely dependent, and consequently, that the reasoning of the Court in that case, must be understood as having direct reference to the facts.
The rules which have been adopted in various decisions, ancient and modern, for distinguishing dependent from, independent covenants, are often so nice and technical, that it is difficult to extract from them the true principle of distinction, and ascertain when it is necessary to aver performance in the declaration, and when not. In 1st Saunders,a it is said, “that covenants, &c. are to be construed to be either dependent or independent of each other, according to the intention and meaning of the parties, and the good sense of the case; and technical words should give way to such intention.” There, the following rules are recognised: 1st. if a day be appointed for payment of money, or a part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, is to be performed; an action may be brought for the money, or for not doing such other act, before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for the performance of that which is the consideration of the money or other act. 2d. Where a day is appointed for the payment of money, &c. and the day is to happen after the thing which is the consideration of the money, &c. is to be performed, no action can be maintained for the money or other thing, before performance. 3d. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant. In support of each of these rules, many respectable author[373]*373ities are cited, and satisfactory comment given, and in illustration of the latter, reference is made to the case of Boon v. Eyre,a where A. by deed, conveyed to B. the equity of redemption of a plantation in the West Indies, together with the stock of negroes upon it, in consideration of 500 pounds, and an annuity of 160 pounds for life; and covenanted that he had a good title to the plantation; was lawfully possessed of the negroes, and B. should quietly enjoy. And B. covenanted that A. well and truly performing all and every thing therein contained, on his part to be performed, he should pay the annuity. The plea was, that A. was not at the time legally possessed of the negroes on the plantation, and so had hot a good title to convey. The Court of King’s Bench, on demurrer, “held the plea to be ill, and added that if such a plea were allowed, any one negro not being the property of A. would bar the action.” The decision went on the principle, that as A. had conveyed the equity of redemption to B. and so had in part executed his covenant, it would be unreasonable that B. should keep the plantation, and yet refuse payment, because A. had not a good title to the negroes. The first and third rules referred to, appear to have a just application to this case. Here one half of the purchase money was agreed to be paid one year before the conveyance was to have been made; and at the same time the purchaser was to be put in possession of the land; and from the state of the pleadings, the transfer of the land must be assumed to have been tendered and accepted, as the pleas do not deny it.
The terms of the covenant, that the intestate should pay to Childress, one half of the purchase money, twelve months before the title of the land was to have been conveyed; and, at the same time, the former should receive possession of the land, is considered as full indication of the intention of the parties, that their respective covenants should be mutual and independent, and that each relied on his legal remedy, in case of a failure by the other. If they did not, why was the vendor to receive half the consideration long before the title was due? Why was it agreed that the vendee should have the possession before the title, and why did he accept it, and continue to retain it? The presumption is, that the possession, for several years, was of considerable value, and that the vendee has had the benefit thereof. But if the vendor was entitled at any time to his action for part of the purchase money, that [374]*374i83icircumstance would appear decisive of the principle, that covenants are, and were intended to be independent; and that he was so entitled after the first instalment became ^¡g Court entertains no doubt. To this point it is deemed sufficient to refer to the case of Adams, et. al. v. Essell, et. al.a That was an action on a contract for the payment of a sum of money by instalments. The opinion of the Court, delivered by Judge Trimble, states that on mature reflection, and an examination of authorities, they had become satisfied, that “in assumpsit, in covenant, and special agreements, although the plaintiff must set out in his declaration, the contract as made, he may assign the breaches according to the truth of the case, and shall recover damages for so much of the contract, as at the commencement of the action, was broken, without depriving him of his remedy; or in other words, he can from time to time, recover as much as is due.” And that the contrary doctrine, had grown out of the rigid principles governing the action of debt, and applied only to that particular form of action. With respect to the effect upon this contract, produced by the act of the vendee in taking and retaining possession of the land, the principles recog-nised by this Court in the case of Christian v. Scott,b are entitled to their influence. It was there ruled, that in an action on a bond for part of the price of a tract of land, if the obligee had delivered the possession to the obligor, and he had retained it, and taken upon himself the ownership, he could not afterwards avoid the payment of the bond, under the plea of fraud in the contract. But in this case, it is to be observed, that neither the defence of fraud nor other failure of consideration is presented by the pleas, even if such could be available. The question is simply whether the covenants were in their nature dependent or independent. If the undertakings of the respective par-lies were mutual and independent, the averment in the ^eciarati°n the vendor’s ability and readiness to convey, C£m onjy regar(je¿¡ as surplusage, producing no injury.c
In the ease of Lee v. Fowler,d the plaintiff had covenanted to build a house for the defendant, and to furnish it on or before a fixed day, in consideration of a certain sum of money, part of which the defendant covenanted to pay at an earlier day, and the residue when the house was finished. The Court decided, on demurrer, that the completion of the house was not a condition precedent, but that the covenants were mutual and independent; that the [375]*375plaintiff's i~ight of aclion for part of the purchase money accrued, before ho was under any obligation to have been in a situation to make an averment of performance, and that though the time had elapsed before the commencement of the su~, the plaintiff might maintain his action for the entire con~ider~.tion mone~ without averring per~ formance, and notwithstanding the building had not been finished at the time appointed. a
The consequence of deciding the covenants under consideration, to have been dependent, would he to declare a recision of the contract. By which means the vendee's represefatives would be left in possession of the land, with the profits arising therefrom for the term of eleven years, which would probably be equal in value, to the larger portion of the purchase money, and this without price paid or payable; at least those are the inferences arising on the record. Hence, a majority of the Court are of opinion, that the judgment below must be affirmed.
JUDGE CRENSIIAW, dissented from the opinion of the Court.
Judgment affirmed~
Juna~ PI~RRY, not sitting.
1 Peters’ R. 465.