
    Nixon vs. Bumpass.
    The condition of a bond was as follows: "That if the within hound A g]la]j 01. cause t0 be ma(Je a title in fee simple to two lots in the town of Waterloo, &c, as soon as the title can be obtained from the United States, agreeably to the regular routine of the sales and land titles of the United States, then and in that case the bond to be void,” &c. The defendant pleaded, that the plaintiff ought not to have and maintain his said action, &c. because he says he has not yet been able to obtain a title from the United States agreeably to the regular routine of sales and land titles of the United States: Held, upon demurrer, thatthis plea was bad.
    This suit was instituted on the following bond: “I acknowledge myself indebted lo John Nixon, jun. in the sum of three hundred dollars, for the due andfaithfulpayment of which I bind myself, my heirs, &c. sealed with my seal, the 27th March, 1820. The condition of the above obligation is, if the within bound Gabriel Bum-pass make, or cause to be made, a title in fee simple, to two town lots in the town of Waterloo, to wit, No. 29 and 206, as represented in the plan of said town, as soon as a title can be obtained from the United States, agreeably to the regular routine of the sales and land titles of the United States, then and in that case the above obligation shall be void and of no effect, otherwise to remain in full force in law and equity. Two conditions are in the above obligation; one is, that the said John Nixon shall pay the notes given by him this day, and witnessed as this bond; the other is, that he or his heirs shall improve and settle said lots,” &c.
    The defendant, after setting out the above bond and condition, upon oyer, pleaded, “that the plaintiff ought not to have and maintain his said action against him, because he says that he has not yet been able to obtain a title •from the United States, agreeably'to the regular routine of sales and land titles of the United States, and this he is ready to verify,” &c. To this plea there was a demurrer. There were other pleas; but as the opinion of the court is founded wholly on this,- it is deemed unne- , . , m1 . . „ „ ,. cessary to notice them. 1 he circuit court of Hardin county sustained the demurrer, and judgment was rendered for the plaintiff below. The suit was .commenced on the 12th May, 1825.
    Combs, for' the plaintiff in error.
    
      Craighead and Fogg, for the defendant in error.
   Peck, J.

delivered the opinion of the court.

The condition of the bond is, that Bumpass “will make or cause to be made, a title in fee simple, to two lots in the town of Waterloo, as soon as a title can be obtained from the United States, agreeably to the regular routine of the sales'and land titles of the United States.” The plea is, that he has not yet been able to obtain a title from the United States, agreeably to the regular routine of sales and land titles of the United States.

This plea offers no sufficient excuse for not having made the title; it does not show that no title has been issued by the United States for the lots, or that none could have been obtained. Where the act stipulated-to be done depends upon another, and a reasonable time for its performance has elapsed, diligence must be shown on the part of him who would save his covenant. Not even application for the title to the proper source, is averred in the plea. Without this, for aught we know-, the title never could issue; it may have been in another, or should have issued to another, on payment of money or fees. What, the regular routine is, has not been shown to the court, that it may be enabled to see that, in legal contem • plation, the condition of the bond has not been broken.

The condition being inserted for the ease of the defendant, he must not claim more of .it when he comes with his excuse, than the peculiar circumstances will justify, and such circumstances must be presented to the ' COurt to be judged of. The other pleas being still more informal and wholly unsubstantial, cannot avail the party.

On the very careless manner of talcing this demurrer, much might be said: but it is omitted under the belief that if on reviewing it in this court as presented, “General demurrer and special for cause, &c. to the first plea,” will not correct the practice, no persuasion of the court could produce that effect.

Judgment affirmed.  