
    Wallace for the Benefit of Bradley v. Shaffer.
    August, 1841,
    Lewisburg.
    (Absent Ttjckeb, P., and CahbIiTj, J.)
    Title Bond — Condition to Convey Good Title — Plea “Conditions Performed” — Case at Bar. — Title bond executed by S. to W. with condition, thatS. should convey good title to W., not to him and his assigns, in 200 acres of land; this bond is assigned by W. to M. and by M. to B. and while the bond is held by M. the first assignee, S. and his wile make a conveyance of the title to M. who refuses to accept the same: in action by W.' for benefit of B. the last assignee, and upon pleas of conditions performed, and of conveyance to M. — Hbtj), that, the condition of the bond requires that the title shall be made to W. and, if there was proof of a conveyance of title to M. that would not sustain the plea of conditions performed, and the second plea of a conveyance to M. is nought.
    This was an action of debt brought by Wallace, for the benefit of Bradley, against Shaffer, in the circuit superior court of Washington, for 400 dollars, the penalty of a bond conditioned for the conveyance of title to a parcel of 200 acres of land.
    The declaration set out and made profert of the bond, and set out the condition, that Shaffer should make or cause to be made to Wallace, a good and complete title to a 200 acre tract of land, lying in Morgan county, ^'Tennessee, on the Clear ' Fork of Cumberland, being the same 200 acre tract purchased of Lawrence Scott; and assigned the breach of the condition, that Shaffer had not made or caused to be made, to Wallace, or any other person having a right to demand the same under the obligation a good and lawful title to the said parcel of land.
    Shaffer took oyer of the bond and of the condition; and the condition was, that Shaffer should make or cause to be made to Wallace a good and lawful title to a 200 acre tract of land lying and being in the county of Morgan on the Clear Fork of Cumberland, be,ing the same 200 acre tract purchased from Lawrence Scott. And it appeared by endorsements on the bond, that it' had been assigned by Wallace to Jacob Miller, and by Miller to Abraham Bradley, for whose benefit the suit was brought. And then he pleaded, 1. Conditions performed ; and 2. That after the bond had been assigned to Miller, and before it was assigned by Miller to Bradley, the defendant and his wife executed a deed conveying the land'to Miller, and acknowledged the same before two justices of the peace of the county of Washington, Virginia, and tendered the deed so executed and acknowledged to Miller, who was then and there the proper person to receive it, he then holding the bond, and that Miller refused to receive the deed; and the plea averred, that the land conveyed by the deed was the same land mentioned in the condition of the bond. General replications were put in to the pleas, and issues were made up.
    At the trial of the issues, Shaffer offered in evidence- to support his first plea, a deed with the certificates annexed of the acknowledgment thereof, to the introduction of which the plaintiff objected, and the court refused to admit it, on the ground that the defendant was bound to shew that the deed, with the certificates thereto annexed, was sufficient to convey the land, according *to the laws of Tennessee, and as those laws were not laid before the court, it could not judicially know that the deed was sufficient The defendant excepted. The jury having, upon all the evidence, found a verdict for the defendant, the plaintiff moved the court for a new trial, which motion the court overruled; and the plaintiff filed a bill of exceptions, stating the facts proved at the trial — That the plaintiff, having given in evidence the title bond, which was assigned by Wallace to Miller, and by Miller' to Bradley, further proved on his part, that neither Lawrence Scott nor the defendant owned, or ever had owned, any land in Morgan county, Tennessee, on the Clear Fork of Cumberland; that the tract of land described in a grant from*the state of -Tennessee to the defendant, and in the deed offered by the defendant in support of his pleas, (the same mentioned in the first bill of exceptions,) was situated at the forks of Cook’s and Crabtree’s creeks, streams flowing into Emery’s river, a branch of Clinch’s river; and that the consideration paid by Wallace, on his contract with the defendant, was 200 dollars, part of the price of a slave. And the defendant, on his part, introduced a grant from the state of Tennessee to him, in pursuance of an entry made in the entry-taker’s office in Morgan county by Charles Atkins, of 200. acres, lying in the said county, on the waters of Clear Creek, describing the same by metes and bounds; and he proved, by one witness, that the land granted to him was equal or superior in quality to lands on the waters of the Clear Fork of Cumberland, and that it lay within about four miles of the waters of that stream: and he then proved, in mitigation of damages, that he and his wife acknowledged the deed mentioned in the first bill of exceptions, and excluded, before two justices of the peace of Washington, Virginia, conveying the land granted to him to Miller, and that Miller, who then held the title *bond, was satisfied with and agreed to accept the deed, and.to surrender the title bond, saying he had before doubted Shaffer’s ability to make him a good title, but he now perceived he could do so: that the deed, however, was not delivered to Miller, but was left with one of the justices before whom it was acknowledged, and was never applied for by Miller, who refused to accept it, or to surrender the title bond, and soon after assigned the bopd to Bradley: that the land covered by the grant to Shaffer, and which was described and intended to be conveyed by the deed of Shaffer and wife to Miller, was the same land which was sold by Lawrence Scott to Shaffer, and which was included in Shaffer’s grant; and that the consideration of Bradley’s purchase of the title bond from Miller, was 1060 acres of hilly land of little value, being not worth more than six and a quarter cents per acre. It was then proved by seven witnesses for the plaintiff, that the land described in the defendant’s grant was not nearer than eight or ten miles to the Clear Fork of Cumberland, and that it was inferior in value to lands on that- stream, the whole tract not being worth more than 50 dollars. Whereupon, the court said, that the grant issued by the state of Tennessee to Shaffer, as-signee of Atkins, for 200 acres of land, described the tract as lying on the waters of Clear Creek, which, in the absence of all testimony on the subject, the court took to be the same as the Clear Fork of Cumberland river; that the waters of that creek probably interlocked with those of Cook’s and Crabtree’s creeks, on which many of the witnesses said the land lay; but, however that might be, there was no allegation or proof that any of the parties had ever seen the land sold, or the county in which it lay: that, from a knowledge of the country, lands on the Clear Fork of Cumberland were more desirable, or more valuable, than lands on Cook’s and Crabtree’s creeks, and the ^purchase was made in reference to the locality of the lands on the first mentioned of the streams; yet it was manifest to the court, that it was a mistake in the description, that the land lay on the Clear Fork of Cumberland; that if the truth had been known, it would not have affected the contract, which was a loose one, mainly dependant, for its description, on the fact that the land sold was the 200 acres purchased of Lawrence Scott;. that it was manifest from the testimony, that the land attempted to be conveyed by Shaffer’s deed to Miller, was the only land ever purchased of Scott, and was the land sold to Wallace, and whether it lay on the Clear Fork or not, did not, under the circumstances, seem to be material, since it was evident, that neither Wallace nor his assignee was influenced in his purchase by the locality of the land, and it appeared doubtful which was the most valuable, land lying on the Clear Fork, or land on Cook’s and Crabtree’s creeks: that the goodness of the title was the main object in the purchase. That it appeared, that Miller, while the contract was his, accepted the deed executed to him by Shaffer and wife; and if that had appeared when the court decided against the admission of the deed in evidence, a different decision would probably have been made on the ground of the acceptance ; but the deed was offered and rejected before any proof of Miller’s acceptance of it was given. Upon the whole case, the court, thinking that substantial justice had been done by the verdict, refused to set it aside, and overruled the plaintiff’s motion for a new trial.
    The court then gave judgment for the defendant according to the verdict; to which this court allowed the plaintiff a su-persedeas.
    Johnston for plaintiff in error.
    Fulton for defendant.
    
      
      See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   *PFR CURIAM.

The circuit superior court erred in overruling the plaintiff’s motion for a new trial. The verdict of the jury was not sustained by the evidence, the plea of conditions performed being altogether unsupported. No evidence appears to have been introduced even tending to prove the making of a deed to Wallace, to whom, by the condition of the title bond, it was to have been made. The imperfect proof of the execution of a deed to Miller, was not evidence under the plea of conditions performed; nor would the deed have been evidence under that plea, if the proof had been complete. As to the second plea of the defendant, it was manifestly bad, since Miller, though the owner of the title bond, was not the person to whom the title was to have been conveyed; and, therefore, he had a right to refuse to accept it, as he is alleged in the plea to have done.

Judgment reversed, and cause remanded for a new trial.  