
    James Davis against Burbage Woodward.
    - thepufcfS'ot’a tract of land, and L7trfrom pE after0 Ti®Elites tne°miLect¡(fersy iñ thenotes.recover
    This was an action of assumpsit on two notes of hand. It was proved they were given for the * * 0 purchase money of a tract of land. At the time the notes were given, the plaintiff bound himself l>y an instrument of writing, which was given in evidence, to make titles to the defendant after the payment of these notes, and the clear meaning of the instrument was, that the payment of the notes should precede the making of titles. At the time the instrument was executed, and the notes given, the defendant went into possession, and continued in possession 12 or 13 years. Between the time of the contract and the commencement of this action, the plaintiff conveyed his interest in the land to another person, who, after the commencement of the action, and before the trial, re-conveyed to him. The plaintiff never tendered a title. The presiding Judge charged the Jury that the plaintiff was entitled to recover, and the Jury accordingly found a verdict for the amount of notes and interest. The case was tried befere Mr. Justice Cheves, at Fairfield, in the Fall Term of 1817.
    A new trial was now moved for, by the defendant, on the following grounds :
    1st. That the plaintiff, by executing titles to another person for the land for which the notes were given, dissolved the contract with the defendant, and the notes from that moment became a nullity if the defendant elected to treat them as such-
    2d. That the consideration of the notes being the tract of land mentioned, and the title being out of the plaintiff at the time suit was brought, by his voluntary act, he had no cause of action.
    3d. That the defendant’s possession was not adverse, and could not confer a title which could form a consideration for the notes, and give validity to them.
   Cheves, J.

delivered the opinion of the Court. The whole of the grounds in this case will depend on this inquiry, Was it necessary the plaintiff should perform his promise to make titles to the defendant, before the notes on which the action is founded were paid? The contract to make titles was independent of the defendant’s engagements under these notes. By its express terms it was to be performed after the payment of them. It is enough, then, if he shall be ready to perform his engagement when tnese notes shall be paid, and a present incapacity can be no defence to this action, and of course, the title being out of him for a moment, will not be a ground of defence. When the notes shall be paid, the plaintiff will be bound to make titles to the defendant, let the title be in whom it may, or suffer the legal consequences of the non-performance of his contract.

Grimké, Colcock, Mott,;Johnson, and Gantt, J. concurred.  