
    Hugh Walker, vs. Hugh Harshaw.
    
      Action on a penal hand to make title to “ all that should remain of a tract of land including the improvements, after taking off two hundred acresA The obligor may fix the location of the dividing line as he pleases, so that the improvements be included in the part to be conveyed, and tender of such title will save the condition of the bond; though' perhaps an equitable partition might be enforced in another court.
    This was an action of debt, on a penal bond, to which the following condition was annexed, “ The condition of this obligation is such, that if the above bound Hugh Harshaw, do make good and lawful titles to the above Hugh Walker, of one hundred acres,-or all that remains after two hundred acres of land, whereon the said Walker now lives, including the improvements of the said Walker, on or before the 1st day of March next, this obligation to bo void hsA
    
    
      Some time after the execution of the bond, the plaintiff pro-* cured a surveyor, and in company with the defendant, went up, on the land and marked a line, laying out to the defendant two hundred acres of land, adjoining other lands owned by him; and both the parties appeared to acquiesce in the line so run. A few days after, the defendant became dissatisfied with the hianner in which the line was run, and procured a surveyor and went again upon the land, in the absence of the plaintiff and marked out another line, varying considerably from the former, reserving to himself, however, no more than 200 acres, and leaving to the plaintiff 167 acres, including the whole of his improvements.
    The defendant then made and tendered to the plaintiff a title deed, according to the line last run, and this constituted his defence to the present action.
    The jury, under the direction of the court, found a verdict for the defendant: and a motion was made, on the part of the plaintiff for a new trial, on the following grounds:
    1st. Misdirection of the presiding judge, in charging the jury, that the defendant had the power of fixing the location of the dividing line.
    2d. Because the defendant was bound by the first line run.
    3d. Because the second line was run without notice to the plaintiff
   The opinion of the Court toas delivered hy

Mr. Justice Johnson.

It is not necessary to the determination of this case, to enter into a minute consideration of the several grounds taken in support of the present motion; they are all involved in a general view of the case itself; the conclusion from which appears to me to he irresistable. The condition of this bond requires nothing more of the defendant, than that he should make titles to the plaintiff for all the tract of land on which he lived, except two hundred acres; and that the land so to be conveyed, should include the plaintiff's improvements. Now, it will not be denied, that the plaintiff could not maintain an action on this contract, until the condition was broken. Has the defendant broken it? The answer is no: he has made, or, which is the same thing, offered to make the plaintiff a title to 167 acres of land.. including the whole of his improvements; which is a literal compliance with the very letter of the condition. His bond therefore, has not been broken, and the plaintiff is not entitled to recover. It is not intended to advance the position, that there is no check on the power of the defendant to have located the land to be conveyed to the plaintiff, so capriciously, that it would have been of little or no value to him; on the contrary, I incline to think that in the partition of land, situated as this was, the same rules which apply to cases of joint tenancy and tenancy in common, ought to prevail; but a court of law possesses neither the power to make such a partition in this form of action, nor of compelling the defendant to carry it into execution. The court of equity alone, it appears to me, could give relief in such a case.

It may be necessary to remarle on the 2d ground of the motion, that this action is founded solely on the bond; raid even admitting that there was an express verbal agreement, that the line fir-t rim should be the dividing line between the par-ties, (if obligatory,) tbe defendant is only answerable on that agreement? • ,- and in addition to this view, I incline to think the defendant would be protected by the statute of frauds.

The motion is dismissed.

Richardson, Huger, Colroclrani ■ Gantt, Justices, concurred.  