
    Elnathan Strong v. Scevy Garfield.
    A contract executed cannot be dependent upon an executory contract.
    
    Hence, where one of two parties executed an assignment, absolute in its' terms, of a lease, and at the same time, gave a separate writing to surrender the possession on a future day, and the assignee, at the same time, contracted in writing with the assignor, to pay a sum of money on ft day before the time of said stipulated surrender, it was held, that on the refusal of the assignor to surrender, according to his contract, the assignee might maintain ejectment for the premises, without having made such payment.
    In an assig-nment, merely, of a leasehold estate, which is limited and de=. fined by the original deed, an habendum is not necessary.
    Ejectment, for lot No. 8, in the 10th range, in Hardwick,
    The facts in the case appear from the opinion of the court. The county court rendered judgment for the plaiiu tiff, and the defendant excepted,
    
      W. Mattocks, for defendant,
    1, The assignment upon the lease does not convey any title. The only operative word, is “ assign.” There is no habendum; nor words, designating what estate was intern ded to be conveyed. 2 Black. Com. 295, 298, 310, Our statute, p. 172, requires the same requisites in a lease for more than one year, as in common deeds. The usual words of a lease are, — “ devise, grant and to farm let.” 2 Black. Com. 317. The only difference between a lease and an assignment is, that a lease is of part, an assignment of the whole of the grantor’s estate. Id. 317, 326,
    2. The assignment of the lease,, the plaintiffs writing to pay the back rents, and the defendant’s to deliver the pos-> session, all having the same date, are to be construed as one contract.
    In deciding upon conditions precedent, courts will look for th.e intention of the parties, regarding the nature of the com tract, and good sense of the case, — not regarding technical distinctions. I Saunders’ Rep. 320, note 4. 1 T. R. 645, 7 do. 121, 126. Selw. N. P. 522, 523, 527.' 4 T. R. 764, 2 Johns. R, 217. 7 T. R. 121. Thorpe v. Thorpe, 1 Rd. Raym, 662. 6 T. R. 668,
    But if the title passed, the proper construction is, that it was to be defeated, on non-payment by plaintiff, Jac, L. D. í‘Condition,” 3. 4. 3 BI. Com. 154,
    
      
      E. Paddock, and B. N. Davis, for plaintiff.
    The assignment of the lease had no connection with the contract, but Is wholly independent of it, neither is there any thing in the contract which goes to control the right of entry.. And the defendant could have maintained an action on the contract immediately upon its falling due.
    If the defendant had his election, to keep the possession or enforce the contract, by pleading the contract in ofiset, he has taken his election. But there is nothing in the whole transaction to show that the payment was to precede the ' right of entry»
   The opinion of the Court was delivered by

Phelps, J.

It appears that the defendant, Garfield, held the land in question, by virtue of a lease from the University of Vermont, for a term which is not specified in the bill of exceptions, but which we assume has not yet expired ; and, on the 17th day of September, 1836, assigned his term, by endorsement on his lease, to the plaintiff, Strong, by an assignment absolute, unconditional, and without reservation. At the same time, he undertakes, by a separate writing, to surrender the possession of the land to Strong, by the first of April following. This last writing, although on its face an undertaking by Garfield alone, is also signed by Strong, for the purpose, probably, of testifying his assent to the retention of possession until that date. On the same occasion, and as a part of the contract, Strong undertakes, by a writing on his part, to pay certain sums then due to the University for arrearages of rent, and also a further sum to the defendant, Garfield, to make up the full consideration of the assignment, which payments were to be made by the first day of Oct. A. D. 1838. ft appears further, that neither party performed according to his undertaking, — but that the plaintiff neglected to make the stipulated payments, and the defendant refused to surrender the possession of the premises. The plaintiff brings this action of ejectment, and the defendant resists a recovery upon the ground, that the plaintiff’s right of possession is dependent upon the payment by him of the consideration stated, as a condition precedent.

It would be absurd to hold an assignment, which is a contract executed, to be .dependent upon a cotemporaneous executory contract. Such a contract may indeed be conditional on the face of it, or may be defeated by matter ex post facto; but if it be absolute in its terms and take immediate effect, it cannot, in the nature of things, be regarded as contingent. The doctrine of dependent and independent covenants has no application to any other than executory contracts. With respect to these, whether they are dependent or independent, is often a .matter of construction and inference, depending upon the supposed intent of the parties. But in case of a contract executed, there is no room for construction or inference, the question of intent being settled by the execution itself.

In this case, the contract of sale is already executed, by an assignment, absolute and unconditional in its terms. How then can we treat the contract of sale as conditional; or bow can the party insist that the estate was to pass upon a contingency only, when he has already completed the sale by an absolute conveyance in presentí ? This case is the same in principle as it would have been, had the plaintiff executed to the defendant his notes for the consideration of the assignment Suppose, then, A. executes to B. an absolute conveyance of his estate, and B. in consideration thereof, executes to A. his notes for the purchase money. Does the conveyance depend for its validity, or the title created by it, upon the ultimate payment of the notes ? If we were to hold that it did, we should overturn the established law of the state, and unsettle the title to perhaps half the property in it.

If the assignment takes effect, it takes effect with all its legal consequences, except so far as these consequences are controlled by the express terms of the contract. The right of possession necessarily follows the conveyance of title, unless the right is expressly qualified or restricted. There is nothing, however, to control the legal effect of the assignment in this case, except that the right of possession is reserved by the defendant until the 1st of April, 1837, which period expired before the commencement of the suit.

The plaintiff, therefore, is entitled to possession of the demanded premises, by force of the assignment, and as a necessary legal consequence.

It seems to have been supposed, however, that the plaintiff’s right to the possession depended upon the contract of the defendant, to surrender possession, rather than the effect of assignment. If we regard the subject in this light, then we have a case of promises, executory on both sides, and j.|le qUestion whether they are independent or dependent, hiay fairly arise. Upon this question, the intention of the parties, if it can be ascertained, is to be the pole-star of our decision. We are aware that many rules have been laid down on the subject, in their character, rather artificial and arbitrary. These rules, however, are intended for cases, where the intention of the parties is not apparent, but difficult to be ascertained. We need not resort to them, where that intention is readily and satisfactorily ascertained, from the contract itself.

Upon the inquiry as to the intent of the parties, the first consideration is, that upon the face of the contract there is not a word which indicates an intention, that the undertakings should be dependent. It was an easy matter to say, that possession should be delivered, if the plaintiff performed. In the next place, a certain day is fixed, upon which possession was to be delivered at all events. In this particular, the Undertaking is absolute. And finally, if the defendant’s undertaking was conditional and dependent upon the plaintiff’s performance, it is impossible to conceive why an assignment of the term was made at all. Did the parties intend to contey the estate absolutely, and leave the consequent right of possession contingent and forever uncertain ? If we so hold, toe must determine, that the condition precedent, not having been performed agreeably to the terms of the contract, the right of the plaintiff to the possession is forever gone. This 'court, at all events, can never dispense with strict compliance with the contract in this particular. Nor can we vacate the assignment, and restore the estate. The result is that the estate is forever gone from the defendant, by his assignment, but the fruits and consequences of the assignment 'can never be enjoyed by the plaintiff. Such a separation between the conveyance itself and its intended effect, certainly, was never designed by the parties; nor can we bring it about, unless forced to it by the imperative terms óf the contract*

A point has been made in the case, growing out of the form of the assignment. It is objected that the assignment contains no habendum, and is for this reason defective. Upon this point it is only necessary to observe, that the office of the habendum, in a conveyance, is to define the estate conveyed ; but in an assignment merely of a leasehold estate, which is limited and defined by the original deed, no such definition is required, and the habendum is not necessary.

Judgment affirmed.  