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merely that neither the covenantor nor those claiming under him will do anything to interrupt the quiet enjoyment of the chattels by the parties contemplated by the deed. Parke, B. in Word v. Audland, 16 M. & W. 875. This case was considered to fall directly within what Lord Hale lays down in Dering v. Farington, 1 Freeman 368, 1 Mod. 113, 3 Keble 104, 6 Vin. Abr. 381.
In South Carolina an express warranty of title to a slave does not exclude an implied warranty of soundness. But when the contract is evidenced by a bill of sale under seal, the terms of which import clearly a warranty of title, the covenant is not extended by intendment to give it the effect of a warranty of soundness. Roseman v. Hughey, Rice 437.
14. Of a covenant by a man to devise or bequeath his estate.
Whether a man covenant to bequeath all his personal estate, or all his real and all his personal estate, among particular persons, he will not be guilty of a breach of the covenant in selling or conveying a part of the estate; such a covenant applying only to the estate that he shall have at his death. Lewis v. Madocks, 8 Ves. 150; 17 Id. 48; Needham v. Kirkham, 3 Barn. & Ald. 531; 5 Eng. Com. Law Rep. 364.
15. Of covenants to pay; distinction between a covenant to pay money and a covenant to pay property.
A general undertaking to pay money, without specifying the time of payment, obliges the party to pay immediately; but an undertaking to do any collateral act, as to convey lands, entitles the party to perform it, at any time during his life, unless hastened by the request of the other party. Green, J. in Bailey v. Clay &c. 4 Rand. 350.
A stipulation to pay money on a particular day unless some event shall happen which, in its nature, may happen either before or after that day, necessarily implies that the money is to be paid if the event does not happen before that day. Thus where the obligor undertook that if W. C. who was prosecuted for murder was not found guilty of murder in the first degree, he would pay the obligee $200 on or before the 12th day of September 1819;-the instrument was construed to mean that if W. C. was not found guilty of murder in the first degree and sentenced therefor before that day, the obligee was entitled to the $200. Cobbs v. Fountaine, 3 Rand. 486.
A bond or note payable in property at a stipulated price or the market value, becomes payable in money by a failure to
deliver or tender at the day. To pay in such property is a privilege that may be waived; and when it is not claimed at the proper time the debtor has made his election. Chambers v. Harger, 6 Harris 16; Lewis v. Long, 3 Munf. 136. this case the promisor was to pay in articles of fluctuating value, and the quantity of those articles which he would have to pay, depended upon the price of the articles at the time of payment; he was to pay in them what would be equal in value, at that time, to the sum of money mentioned in the obligation.
But if the quantity of the articles to be delivered, be fixed, so that at the day of payment, that quantity of such articles may fall short of the debt, the value of that quantity is what the creditor is to recover, and the mode of recovery is not by action for a debt but by an action for damages. Thus an agreement to pay on or before a specified day $813 79 cts. in notes of the United States bank, or either of the Virginia banks, was considered an engagement to pay so many of such bank notes as on their face would nominally make the sum of $813 79 cts. ; and there being no difference between bank paper and any other commodity, the value of the notes on the day of payment was the criterion by which to ascertain the damages. Such damages were not recoverable in an action of debt. Beirne &c. v. Dunlop, 8 Leigh 514.
16. Whether the liability is for a debt or only for damages is material in respect to the form of action.
Covenants the performance whereof is secured by a penalty are susceptible of a two fold remedy: 1. an action of debt for the penalty, after the recovery of which the plaintiff cannot resort to the covenant; because the penalty is a satisfaction for the whole; 2. an action of covenant in which the plaintiff, waiving the penalty, proceeds on the covenants, and may recover more or less than the penalty toties quoties. Lowe v. Peers, 4 Burr. 2225; Roane, J. in Eppes's ex'or v. Demoville, adm'r, 2 Call 29.
Though the performance is not secured by a penalty, still the covenant may be susceptible of a two fold remedy, when by it there is created a debt, that is an obligation to pay a sum of money. A debt may be created by a contract, even of a vendor of land. Suppose, for instance, J. S. contracts by deed, to convey lands to J. N. in three months, or at his election in lieu thereof to pay J. N. $100 at the expiration of a farther term of three months after the first;-during the first three months, the covenantor may either convey land or
pay money, and his contract creates no debt; but on failure to convey the land in three months, the obligation becomes single and absolute to pay money; the debt first accrues from that time. 23 Pick. 299.
When the contract neither subjects to a penalty nor creates a debt, still the breach of such contract gives a right of action to recover the damages sustained by such breach; if the contract be under seal, an action of covenant; if it be not under seal, an action of assumpsit.
OF CONDITIONS PRECEDENT; WHAT PERFORMANCE BY PLAINTIFF MUST PRECEDE HIS ACTION.
1. General rule as to what is a condition precedent.
The old doctrine, the injurious tendency of which was noticed in Thomas v. Cadwallader, Willes 496, has ceased to prevail; the opinion expressed in Kingston v. Preston, Dougl. 689, has become the rule. 8 T. R. 371. It depends, says Lord Ellenborough, not on any formal arrangement of the words but on the reason and sense of the thing, as it is to be collected from the whole contract, whether of two things reciprocally stipulated to be done, the performance of the one does in sense and reason depend upon the performance of the other. Ritchie v. Atkinson, 10 East 306. In the language of Tindal, C. J. the question whether covenants are to be held dependent or independent of each other, is to be determined by the intention and meaning of the parties as it appears on the instrument and by the application of common sense to each particular case; to which intention, when once discovered, all technical forms of expression must give way. Stavers v. Curling, 3 Bingh. N. C. 355; 32 Eng. Com. Law Rep. 159. This general rule is now well established both in England and the United States. Glaholm v. Hays, 2 Man. & Grang. 267; 40 Eng. Com. Law Rep. 364; Fishmongers Co. v. Robertson, 5 Man. & Grang. 197; 44 Eng. Com. Law Rep. 112; Ollive v. Booker, 1 W. H. & G. 423; Macintosh v. Midland Railway, 14 M. & W. 548; Jowett v. Spencer, 1 W. H. & G. 647; Grey &c. v. Friar, 15 Adol. & El. N. S. 912; 69 Eng. Com. Law Rep. 912; Friar v. Grey &c. 5
W. H. & G. 596; Graves v. Legg, 25 Eng. Law & Eq. 556; Tileston v. Newell &c. 13 Mass. 406; Watchman &c. v. Crook &c. 5 Gill & J. 255; Philad'a W. & B. Railroad Co. v. Howard, 13 How. 339.
Generally speaking, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions; the one precedent to the other. 1 H. Bl. 273, note; Cutter v. Powell, 6 T. R. 320; 2 Smith's Lead. Cases 11; Lilley v. Elwin, 11 Adol. & El. N. S. 755; 63 Eng. Com. Law Rep. 755; Dakin v. Williams, 11 Wend. 70; Couch v. Ingersoll, 2 Pick. 302.
2. Particular rule when day appointed for payment of money is after consideration for it is to be performed.
When a day is appointed for the payment of money and the day is to happen after the thing which is the consideration of the money is to be performed, no action can be maintained for the money before performance. Thorpe v. Thorpe, 1 Salk. 171, 2d resolution; 1 Ld. Raym. 662; 1 Saund. 319, 20, note 4; Dey v. Dox, 9 Wend. 133. Under this rule, where there is an agreement for the sale of land, the making or tendering a conveyance must precede an action for the purchase money, if the meaning of the agreement appears to be that the vendor shall convey before the purchase money is payable. This sufficiently appeared in Brockenbrough v. Ward's adm'r, 4 Rand. 355, notwithstanding it was stipulated that the vendor should convey in convenient time; for this was limited and explained by a subsequent stipulation that the vendee should give a mortgage to secure the purchase money at the time it became due.
3. Particular rule when day appointed for paying money or doing any act is before consideration for it is to be performed.
If a day be appointed for payment of money or 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 or other act 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 on his remedy and did not intend to make the performance a condition precedent. Thorpe v. Thorpe, 1 Salk. 170; 1 Ld. Raym. 662; Comyn 98; 12 Mod. 455; 1 Chitty's Pl. 313; Dox v. Dey, 3 Wend. 360; Couch v. Ingersoll, 2 Pick. 300; Cobbs v.
Fontaine, 3 Rand. 489; Burney v. Galloway, 11 Iredell 53; Decker v. Jackson, 6 Man. Gr. & Scott 114; 60 Eng. Com. Law Rep. 114; Dock Co. v. Brymer, 5 W. H. & G. 710.
A defendant covenanted to pay to a third person certain rent due and in arrear to him, on a certain farm, and all which should become due on the 25th of March 1825; the whole to be paid on that day; and the plaintiff covenanted that on the defendant's so paying the rent, he, the plaintiff, would give up and discharge a certain bond and mortgage. To an action brought for not paying the rent, it was no valid plea that the plaintiff did not, on the 25th March 1825, give up and discharge the bond and mortgage, nor tender nor offer to do so on that day or before or since; for the performance by the plaintiff of his part of the agreement was not necessarily simultaneous but was naturally to be subsequent. Northrup v. Northrup, 6 Cow. 296. On the same principle was decided Slocum v. Despard, 8 Wend. 615; in each of these cases, the circumstance that the money was to be paid to a third person was considered as indicating the understanding of the parties that the payment was to be first made; evidence of that payment was to be produced by one party to the other before the latter was to perform his covenant. 11 Wend. 48; 9 Grat. 160.
4. On one side the promise may be dependent while on the other it is independent.
If the money is to be paid on a day fixed before the act is to be done, for which it is the consideration, the payment of the money does not depend upon the performance of the actthe promise is independent; but the peformance of the act may depend upon the payment of the money-that promise may be dependent. If the money is made payable after the act is to be performed, the performance of the act does not depend upon the payment of the money, but the payment of the money depends upon the performance of the act. This was the case in Dey v. Dox, 9 Wend. 134; the payment of the money was fixed at a day after the plaintiff was bound to deliver the wheat; therefore the defendants were not to trust to the credit or personal responsibility of the plaintiff, but had a right to have possession of the wheat before they parted with their money.
5. A condition precedent is sometimes divisible.
Cases may be conceived in which the covenant or agreement