
    Warner W. Wadlington vs. William R. Hill.
    Covenants are to be construed as nearly as possible by the intention of the parties, to be gathered from the whole context, to be interpreted according to the reasonable sense of the words.
    In contracts where either party may be compelled to part with his money or property without receiving the stipulated equivalent, the party seeking to enforce the contract must make his own part of the agreement precedent, and must allege either a performance or a tender and refusal.
    H. bought a tract of land of W. for $ 10,500; paid five thousand dollars in cash, and entered into a covenant with W. to pay five thousand more in ten days, and five hundred on the first of January, thereafter, and W. covenanted “ on the payment of the five thousand dollars last named ” to execute good and sufficient titles for the land to H.; the latter being sued on the covenant for the $ 5,500 plead that W. had failed to have made to him a tender of a deed of conveyance of the lands : Held, on demurrer, that the plea was a good bar to the action.
    In error from the circuit court of Madison county; Hon. John H. Rollins, judge.
    WarnerW. Wadlington brought his action of covenant against William R. Hill, on the following writing:
    “Mississippi, Madison county.
    “ W. R. Hill and W. W. Wadlington have this day agreed on a contract for the sale, by the said Wadlington to said Hill, of the plantation and tract of land of Wadlington, in Madison county, near Demon, containing and warranted to contain six-eighths of land, being the same now occupied by said Wadling-ton, whereon his improvements are situated, at and for the sum of ten thousand five hundred dollars, current money of Mississippi currency, five thousand of which is paid down and received by said Wadlington, and the further sum of five thousand dollars is to be paid by said Hill in ten days, and the remaining sum of five hundred dollars is to be paid on the first of Jauuary, next, both said last mentioned sums to be paid in the like currency of the first. On the payment of the last mentioned sum of five thousand dollars, the said Wadlington agrees to execute to said Hill good and sufficient titles for the plantation aforesaid, with sufficient warranty therein, which said land shall be free and clear from all incumbrances thereon.”
    Breaches are assigned in the non-payment of the $5,000 and $500.
    The only question arises on the third plea, to which the plaintiff demurred. It is as follows :
    “ Because he says that the said plaintiff did not, after the said sum of $5,000 fell due, tender to the defendant good and sufficient titles to said plantation, with sufficient warranty, and did not request the said defendant to receive the same and pay plaintiff said sum of money, as the said plaintiff in his declaration alleges, and of this he puts himself upon the country,” &c.
    The plaintiff demurred to this plea; the circuit court overruled the demurrer, and gave judgment for the defendant. Wadlington sued out this writ of error.
    
      D. Mayes, for plaintiff in error.
    The tender of the deed, and demand of the money, not being a condition precedent, the issue tendered is immaterial. The traverse should be on a material allegation. Bright v. Roioland, 3 How. 415; Stephen on Plead. 241, 425.
    
      W. R. Hill, in proper person,
    Filed an elaborate argument in behalf of the plea, in which he cited and commented on the following authorities: Sug. on Tend. pt. 1, p. 293 ; King v. Preston, Doug. 689; Sug. on Tend, pt. 1, pp. 292 - 29T; 1 Chit. PI. 356; Green v. Reynolds, 2 John. Rep. 207; Jones v. Gardner, 10 lb. 267; Gazley v. Price, 16 lb. 267; Parker v. Pármele, 20 lb. 130 ; Robb v. Montgomery, 20 lb. 13; Hudson v. Swift, lb. 23; Hardin v. Keetsinger, 17 lb. 293; Champion v. Rowley, 13 Wend. 258; Johnson v. Wygant, 11' lb. 48; Hunt v. Liverm.ore, 5 Pick. 395; Law v. House, 3 Hill’s S. C. Rep. 268; Bank of Columbia v. Hagner, 1 Pet. 455; 1 Saund. 320; Cunningham v. Morrell, 10 John. Rep. 203; Terry v. Duntze, 2 H. Black. 589; Gibson v. Newman, 
      1 How. Miss. Rep. 341 ; P ordago v. Cole, 1 Saund. 319, n. 4; Champion v. White, 5 Cow. 509; Mason v. Chambers, 4 Litt. 253; Saunders v. Ball, 4 Bibb, 342; Gardner v. Corson, 15 Mass. 500; Coleman v. Rowe, 5 How. 460; 3 Serg. & Rawle, 228 ; 2 Rand. 473.
   Mr. Justice Thacher

delivered the opinion of the court.

This was an action of covenant, instituted in the Madison county circuit court.. The articles of agreement, upon which the action was founded, covenanted that Wadlington should convey a tract of land to Hill, for the consideration of $10,500, of which sum, $5,000 was paid at the time of executing the contract, $5,000 was to have been paid ten days thereafter, and $500 was to be paid on the 1st day of January thereafter. It was further covenanted, that “on the payment of the last mentioned sum of $5,000,” Wadlington was to execute to Hill good and sufficient titles for the tract of land in question. The question in the case, arises upon the sufficiency of a plea alleging a failure on the part of the plaintiff below, to have made a tender of a deed of conveyance of the tract of land. To such a plea, a demurrer, on the ground that the issue offered was immaterial, was overruled by the court.

The propriety of the decision of the court below, depends upon the solution of the inquiry whether the covenants in the articles of agreement are dependent or independent. In order to solve this question, the general rule should be carefully regarded, that covenants are to be construed, as near as possible, by the obvious intention of the parties, which must be gathered from the whole context of the instrument, interpreted according to the reasonable sense of the words. It will be observed that this is the case of a vendor seeking to make his vendee fulfil his engagement. In contracts where either party might be compelled to part with his money or his property, without receiving the stipulated equivalent, the latest and best action of the courts has been to hold that the party seeking to enforce the contract must make his own part of the agreement precedent, and allege either a performance or a tender, and refusal. Bank of Columbia v. Hagner, 1 Peters, 465 ; Gardner v. King, 2 Iredell, 297; Stockton v. George, 7 H. 172. The second covenant, in the articles of agreement now under consideration, is of the kind to which the foregoing rule applies.

Judgment affirmed.

The foregoing opinion was delivered at the January term 1846. D. Mayes, Esq., for the plaintiff in error, filed a petition for rehearing; the application was held up until the present term, (January, 1848,) when it was refused.  