
    *Robertson v. Robertson.
    December, 1824.
    Dependent Covenants — What Constitute; —Declaratlo—Allegation.—Where two parties contract, the one to assign bonds, and the other to convey and surrender lands, at the same time, the covenants are depended on each other; and neither party can insist on the performance of the other, unless he himself performed, or offered to perforin, his part of the agreement. An allegation in the declaration, of an offer to perform, after the day, is an incurable error.
    John A. Robertson brought an action of covenant in the Superior Court of Amelia county, against George Robertson. The covenant declared on, is to this effect: That the said George Robertson agrees to sell his tract of land on which he now lives, to the said John A. Robertson, for the sum of 18001., to be paid as follows, viz: the said J. A. Robertson is to execute four bonds to the said George, in four annual payments; the first, on the 25th day of December, 1800; the second on the same day, in the year 1801; and the other two on the same day, in the two succeeding years; each of the bonds to be given for 4501., and to carry interest from their respective dates of payment, &c.; and the said G. Robertson “is hereby bound to make the said J. A. Robertson a full, complete and legal title to the land he now lives on, containing, &c. whenever the said J. A. Robertson tenders the said four bonds, in manner before described, with sufficient security, &c. The said G. Robertson is to render in possession to the said J. A. Robertson the said land and appurtenances on the 25th day of December next, &c.” This covenant is dated on the 14th day September, 1800. The declaration proceeds, “And the plaintiff in fact saith, that, although he hath well and truly kept and performed his covenant and agreement aforesaid, in all things as he ought to have kept and performed the same; and although he did, on the fourth day of March, 1801, at the parish, &c. in the county of Amelia aforesaid, and within the jurisdiction of the Superior Court aforesaid, tender and offer to the said defendant, in pursuance *of, and in conformity to the said agreement and covenant, four bonds, with sufficient security, &c.” Yet, that the defendant had violated the agreement, on his part, by refusing to make to the plaintiff a full, complete, and legal title to the said land.
    The defendant pleaded that, on the 35th day of February, 1801, a controversy arose between the plaintiff and defendant, concerning the security which the plaintiff 'was to give to the defendant, which was referred to the arbitrament of E. Meade, D. Meade and W. Murray, who awarded that the plaintiff should give to the defendant personal security, and also a deed of trust on the land; and that the plaintiff had failed to comply with the said award, &c.
    The plaintiff replied, that the defendant disabled and prevented him from tendering a deed of trust as in the plea mentioned, because the defendant failed to convey the land covenanted to be sold to the plaintiff, which rendered it impossible for the plaintiff to execute a deed of trust to the defendant.
    After some other pleading, not material to be mentioned, the parties joined issue; and the jury found a verdict, that the plaintiff was not ready and willing, at any time, to execute the deed of trust awarded by the arbitrators, as the defendant had alledged, and that the defendant had not broken his covenant with the plaintiff. The Court rendered judgment accordingly for the defendant.
    The plaintiff appealed to this Court; in which the cause was submitted, without argument. .
    December 2.
    
      
      See monographic note on “Covenants” appended to Todd v. Summers, 2 Gratt. 167.
      The principal case is cited with approval in Roach v. Dickinsons, 9 Gratt. 162; B. & O. R. R. Co. v. McCullough & Co., 12 Gratt. 597.
    
   The Judges delivered their opinions.

JUDGE GREEN:

By the terms of the covenant sued upon, the.tender of bonds with good security, on the 35th day of December, 1800, by the plaintiff, was a condition precedent to the obligation, *on the part of the defendant, to convey and surrender possession of the land. The covenant is express, that he was not to convey until the bonds were delivered or tendered; and the day fixed, by the agreement, for delivering or tendering the bonds, was the 35th of December, 1800, which was also the day appointed for delivering possession of the land to the plaintiff. The covenants being to be performed, on both sides at the same time, were therefore dependent on each other; and neither party could insist upon the other’s performing his part of the .covenants, unless he himself performed, or offered to perform his covenants at the appointed time. In this point, the declaration is incurably defective. It does not alledge a performance on the part of the plaintiff, at the appointed time, or that the defendant had consented to postpone the performance to a later day; but alledges an offer to perform on the 4th of March, 1801, as a’compliance with the terms of the original contract; when, in truth, it appears to have been an offer, to perform an agreement or award, made after the covenant was broken by the plaintiff, and not noticed in the declaration. Such an agreement or award, if strictly performed by the_ plaintiff, could not give him a right of action upon the original covenant. The issue, made up on the first plea to this declaration, was immaterial; the plea being no answer to the declaration. The second plea, and the issue made up on that, puts in issue the fact, whether bonds had been tendered according to the contract; and the Court properly instructed the jury on that point, that the tender of the bonds was a condition precedent, to tie performed by the plaintiff, to enable him to maintain his action. Whether the other branch of the instruction was _right_ or wrong, it is not material to inquire; since, if there had been a verdict for the plaintiff, the judgment must have been arrested, and a judgment given for the defendant; because the declaration shewed no cause of action, and, in that case, a repleader could • not be awarded. It would be to no purpose, to make up new *issues on a declaration, on which no judgment could be given, in any event. Smith v. Walker, 1 Wash. 135.

The judgment ought to be affirmed.

The PRESIDENT:

The defect in the declaration renders it unnecessary to decide on the subsequent pleadings and the bill of exceptions. The allegation in the declaration, of the performance of the covenant by the plaintiff, is completely at variance with the covenant declared upon. This is an incurable error of itself, and judgment must be affirmed.

JUDGES CABELL and COALTER concurred; and the judgment was affirmed. 
      
      Jtjdge CABE, absent.
      The case was arguefl before he came into the court.
     