
    John Hazlip et al. Administrators of Joseph Galtney, vs. Pierce Noland.
    Where a party executes his notes payable at fixed periods, for the purchase of a tract of land, and receives from the vendor a bond to make title to the land, and the vendor sue on the notes to recover the purchase-money, the contracts are independent and the vendor may recover, although he has not made a deed to the land.
    Where a vendor of land in his bond for title, describes the land as lying on a certain creek in the county, in certain sections, without giving the particular subdivisions of the sections or the township and range in which the land lies ; the description of the land will be sufficient to uphold the consideration of the notes given for the purchase-money; as the location on the particular creek removes the uncertainty as to the subdivisions and township.
    Where a vendor of land has given a bond for title, without affixing any time in which it is to be made, and takes notes payable at a fixed time for the purchase-money ; and afterward, but before the notes are paid, executes a defective deed to the vendee, he will not thereby be deprived of his right to recover upon the notes ; as the execution of the defective deed does not absolve him from the obligation of his bond to make a good title ; which the vendee may still demand.
    Whether where a vendee of land, who has a bond for title from the vendor, dies before paying the purchase-money, and his administrators are sued therefor, the administrators can object to a deed from the vendor, made but not delivered before the vendee’s death, for insufficiency or imperfection, so as to call in question the validity of the title to the land, by way of assailing the consideration of the notes ? Quiere ?
    
    Whether where a vendor, who has given a bond for title, recites in his deed conferring title, that he grants, bargains and sells the land, and in the conclusion of the deed warrants the title only against himself and heirs, he thereby limits the statutory warranty given to the words grant, bargain and sell 1 Quiere 1
    
    A warranty does not pass title, but only secures an indemnity if there be incumbrances ; a vendor of land, who has given a bond to make title, it seems therefore may, under some circumstances, comply with his bond by giving a deed to the land with special warranty.
    In error from the Adams circuit court; Hon. Charles C. Cage, judge.
    
      Pearce Noland sued John Hazlip and Charlotte Galtney, administrator and administratrix óf the estate of Joseph Galtney, deceased, upon four notes, one for $350, and the others for $1066 each, dated January 1, 1840, and due in four consecutive years ; and also upon an open account. The defendants plead non assumpsit by their intestate. The case was submitted to a jury, who found for the plaintiff.
    By the bill of exceptions, sealed at the instance of the defendants, it appears that the plaintiff rested his case after reading the notes sued on. The defendant then offered to introduce in evidence the following title-bond of the plaintiff, viz. :
    Know all men by these presents, that I, Pearce Noland, of the county of Warren and state of Mississippi, bind myself, my heirs or assigns, for six hundred and forty acres of land, lying and being in Octilbeha county, on a branch called Cypress Creek; the lots are described as follows, to wit: three quarter sections in section seven; in section five, one-eighth ; in section four, one eighth. The condition of the above obligation is this, if P. No-land, his heirs or assigns, cause to be made a lawful and complete title to the above described tract or parcel of land to Joseph Galtney, his heirs or assigns : then and in that case the above obligation to be null and void, otherwise to remain in force and virtue.
    Given under my hand and seal this the 3d day of January, 1840.
    Pearce Noland, [l. s.]
    The defendants at the same time stated to the court, that they would endeavor to show from said bond and by parol testimony, that the notes sued on were given in consideration of certain lands situated in the county of Octilbeha, state of Mississippi, and mentioned in said bond ; that the said Joseph Galtney died on the third day of January, 1842, and that during his lifetime, the plaintiff did not make a conveyance to him; that after the death of Galtney, the plaintiff, in March or April, 1842, sent the following deed to the defendants, viz.:
    
      
      “ This indenture, made this tenth day of December, one thousand eight, hundred and forty-one, between Pearce Noland and Elizabeth his wife, of the county of Warren, and state of Mississippi, of the first part, and Joseph Galtney, of Adams county, and state aforesaid, of the second part; witnesseth, that the said party of the first part, in consideration of the sum of five dollars per acre, to them in hand paid by the said party of the second part, the receipt whereof they do hereby acknowledge, hath granted, bargained, sold, released, and confirmed ; and by these presents do grant, sell, bargain, release and confirm unto the said party of the second part, and to his heirs and assigns forever, all that tract of land situate, lying and being in the county of Octilbeha, state aforesaid, and more distinctly known as the east half and southwest quarter of section No. 7, (say seven,) and the east-half of the southeast quarter of section No. 6, (say six,) and the west half of the southwest quarter of section No. 5, (say five,) all of township seventeen, north of range thirteen, east, in the Columbus district of the public lands, containing six hundred and forty acres more or less; together with all and singular the hereditaments and appurtenances whatsoever, to the same belonging and appertaining, to have and to hold the said lands, tenements and hereditaments, and all and singular other the premises herein before mentioned, with the appurtenances unto the said party of the second part, his heirs and assigns, and to his and their only proper use and behoof. And the said party of the first part, and their heirs all and singular the aforesaid lands, tenements, hereditaments and premises, and every part and parcel thereof unto the said party of the second part, his heirs and assigns against them the said party of the first part, their heirs and assigns, shall and will forever warrant and defend by these presents. In witness whereof we have hereunto set our hands and seals the day and year above written.
    Pearce Noland, [l. s.]
    Elizabeth Noland, [l. s.]
    
      State of Mississippi, Warren County.
    
    Personally appeared before me, Alfred H. Rowlett, clerk of the probate court of said county, the above-named'Pearce,Nowland, and Elizabeth Noland his wife, who acknowledged that they signed, sealed and delivered the foregoing deed, on the day and the year therein mentioned, as their act and deed. And the said Elizabeth Noland, wife of Pearce Noland, being by me privately examined, separate and apart from her said husband, acknowledged that she signed, sealed, and delivered the same freely and voluntarily, without any fear, threat or compulsion of her said husband.
    Given under my hand and seal of office this 15th day of December, 1841. ' A. H. Rowlett, Clerk.
    
    That the defendants did not accept the deed, and never took possession of the land, nor did Galtney in his lifetime ever have possession of it. The court refused to permit any of this testimony to go to the jury.
    The defendants prosecute this writ of error ; and now assign for error: 1, the refusal of the court to allow the introduction of the documentary and parol evidence offered ; 2, in not allowing the title-bond to be read, to show the failure of consideration of the notes.
    Dubuisson, for plaintiffs in error.
    1. The first inquiry is, were the covenants between the parties mutual and dependent, or mutual and independent? If mutual and dependent, the court was bound to let the whole matter go to the jury. It is a settled rule, that where two acts are to be done at the same time, neither party can maintain an action without showing performance. 7 Term R. 125; 1 Salk. 112, 171; 1 Sanders, 920; 2 Johnson, 207; 15 Ibid. 267; 17 Ibid. 243.
    The law which requires the tender of a deed, requires that deed to be operative; the tender of a defective deed, void for want of covenants, or for insufficient description, or other material defect, would not be a performance; the deed tendered in this case is imperfect and inoperative, both in covenants and description of the property. Fourteen or fifteen townships were in a county; sections of the same number must occur in them ; while the designation of Cypress Creek was too uncertain. The deed was not delivered until after the death of Galtney; it took effect from delivery, and not from date, and should have made therefore to the heirs.
    2. If the covenants be mutual and independent, the only relief of the defendants was in a court of law. The bond is the consideration of the notes; if that be invalid, the notes are so. We can only show the invalidity of the bond by introducing it. The bond is void for uncertainty. 3 How. 231, and authorities there quoted; 1 Pick. R. 31; 16 Mass. R. 86 ; Sugden on Yendors, 114, 115.
    The description of land in a deed must be given with sufficient certainty to distinguish the lands from other lands. 4 Cruise Dig. 204, § 20, 221, 635; 4 Mass. R. 205 ; 13 Johns. R. 102,103; 8 Peters, 84. If Galtney had taken possession, the description might have been less uncertain than otherwise would have been required. Free. Ch. R. 53, and authorities quoted.
    The rule of law that requires an eviction before a defence can be made to payment of notes given to the vendor for the purchase-money of lands does not apply here, because neither the appellants nor their decedent ever were in possession, but always refused the deed as insufficient. Even this rule of law has been relaxed to some extent. In a case in 11 Johns. R. it is decided, that a purchaser in a suit at law upon his note given to vendor for the purchase-money of land, may be allowed to show, in his defence of the note, a total failure of consideration, notwithstanding he has deed with full covenants, and had not been ejected, and the reason given by the court for this is, that circuity of action would be prevented. Frisbie v. Hoffnagle, 11 Johns. 50, and the cases there quoted.
    The reasons in that case apply with double force to the one before the court. There the defendant was in possession, but about to be evicted; here the defendants have never been in possession, but their bond is void, and under it they never can have possession. Courts .will not decree parties when full justice can be done in the courts of law.
    
      The conclusion to which we are brought is:
    1. If the covenants are mutual and dependent, Noland must show performance before he can recover, or if he has made an attempt to perform his part of the contract, he has brought himself within the rules of law applicable to mutual and dependent contracts. The defendant may show that he has failed, and this may be done in a court of law.
    2. If the covenants are independent, .then we have a right to show that his bond, containing the covenants, is void for uncertainty ; that the consideration of the notes has entirely failed, and that a court of law, in suit on the notes, is the proper place for this investigation.
    3. That we were entitled to introduce the testimony, and have the whole matter passed upon by a jury.
    
      Quitman and McMurran, for defendants in error.
    We rely on the following points, on behalf of the defendants in error.
    1. The record shows that the agreements or obligations of the intestate, Joseph Galtney and the defendants in error, are entirely distinct and independent of each other. Galtney gives his three several promissory notes to Noland, without any consideration annexed to their payment; and Noland gives his bond to make title to a tract of land to Galtney. The one relies on the notes, the other on the bond he holds. Each must pursue his own remedy, if there should be a non-compliance of the other with his engagement; and a performance by one is not necessary to entitle the other to sue.
    The authorities cited by the opposite counsel sustain this position. See also Hageman v. Sharkey, 1 How. R. 277; 1 Saund. R. 319, 320 ; Case 54, Pardge v. Cole, and also note 3.
    When the promise to pay is independent of the covenant to make title, he may maintain an action without showing that he has made title. In no case could the promise be more independent of the covenant or obligation to make title than in the present.
    2. It is contended that the bond is void for uncertainty, and that the deed differs from it regarding one or two of the pieces of land. We think otherwise. The bond describes certain fractions of sections of land in Cypress Creek, in Octilbeha county. There is no evidence to show that there are other pieces of land of the same description on that creek, and therefore there is sufficient certainty. 4 Wheat. R. 444.
    But the deed is complete as to the description of the land ; it was fully executed in Galtney’s lifetime in due form of law, and is conclusive in Noland as to the land. The deed is in possession of plaintiffs in error, and produced by .them, and if there should be any land in the deed different from that in the bond, that difference would not be a subject-matter of defence in an action of assumpsit against the administrators of the deceased. It would at the utmost be but a partial failure of consideration, which cannot be set up as a defence at law.
    Besides, Noland cannot be considered in default, so that suit could .be maintained against him in chancery for title, or on the bond for damages until a title had been demanded by the heirs of Galtney, and he had refused to make it. In which must they have their remedy? And the fallacy of the position of the opposite counsel is manifest, by the bare statement that if the administrators were to succeed in this case, the heirs of Galtney are entitled to the deed set forth in the"record, or to have a correct one made to them through the court of chancery.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

Noland brought this action on four promissory notes made by Joseph Galtney in his lifetime, against the plaintiffs in error as administrators. On the trial, they offered to introduce a title-bond for a section of land which had been given by Noland to Galtney, and stated at the same time that they would endeavor to show from the bond, and by parol evidence, that the notes were given for land lying in Octilbeha comity, mentioned in the bond — that Galtney died on the 3d of January, 1842, and had not, during his lifetime, received a conveyance; that in March or April, 1842, Noland sent to Galtney’s administrators a deed for the land, which bears date some time prior to Galtney’s death, which they also offered to read, hut this evidence was rejected.

It is insisted’ that the evidence should have been admitted, because the covenants of the parties are mutual and dependent, and that Noland cannot recover until he makes a good title to the land, which, it is said, he has not done, inasmuch as the deed is void for ambiguity in the description of the land. There is no objection arising out of any imperfection in Noland’s title. In principle, there is no difference between this case and . the cases of Hageman v. Sharkey, 1 How. 277, and Gibson v. Newman, Ibid. 349; in both of which the covenants, in contracts similar to this, were held to be independent; that the vendor was entitled to recover the purchase-money, although no title had been made. Noland agreed to convey, but when the title was to have been made does not appear. On the strength of that agreement, Galtney executed the notes, payable annually, relying on the security'afforded him by the title-bond. By giving the notes payable in this way, without making the payments depend upon the execution of the conveyance, he manifested an intention to part with his money at all events, not upon a contingency only; and having omitted to protect himself by the contract, his administrators cannot say that Noland is bound to make title before he can sue for the purchase-money. The intention of the contracting parties is apparent, and must prevail.

But it is said, even if the covenants are independent, the bond is void for ambiguity, and is therefore insufficient as a consideration to make the notes valid. The bond describes the land as six hundred and forty acres, “lying and being in Octilb.eha county, on a branch called Cypress Creek. The lots are described as follows, to wit: three quarter sections in section seven; in section five, one-eighth; in section four, one-eighth.” The defect relied on is, that the township and range in which these sections are situated, are omitted in the description; that sections having these same numbers are to be found in every township, and that each county must contain a number of townships. This may be true, and unaided by other descriptive calls, the description would be uncertain. But because there are other sections in the same county designated by the same numbers, it does not follow that those other sections lie upon Cypress Creek. That creek is the general or locative call; the sections the particular call. If it should turn out that there are other sections of the same numbers on that creek, then there is an ambiguity, but it is latent, arising not from the description in the bond, but from a collateral matter, or extrinsic evidence, and may be explained by parol .testimony, on the principle that when there are two or more persons or things which answer the description in the instrument, parol testimony is admissible to show which was intended. Sugden on Vendors, 113; 1 Phil. Ev. 531, and note 939; Jackson v. Goss, 13 Johns. R. 518. If there be a defect in the description given by the bond, it is in the omission of the particular subdivisions of sections contracted to be sold. By law, sections are subdivided into sixteenths, eighths, quarters and halves; the description is of a certain portion of these sections, without stating which of the subdivisions was intended. But this apparent uncertainty, like the uncertainty in the sections, is removed by locating the parts of sections on Cypress Creek.

But it was insisted that as Noland had undertaken to perform, by making a deed before the suit was brought, he thereby made the covenants dependent; and if the deed be defective, he cannot recover. No authority was referred to in support of this position, and it seems to be opposed by the contract. Noland gave a general obligation to make a complete title, without appointing any time at which it was to be executed. He had a right to retain the title until the purchase-money was paid, or he was at liberty to make it sooner. He chose to make title before he was bound to have done so ; but we cannot see how this could change the nature of defendant’s promise to pay. By paying, the security of the bond still exists, and if the title made by Noland be defective, he may be compelled to make a good one. He did not discharge his own obligation by making a defective title; nor did he defeat his right by doing that improperly which he was not bound to do.

But the objections raised to the title made by Noland are without foundation. The objection is, that it is void because of a patent ambiguity in the description of the land. The description is, “ all that tract of land¡ situate, lying, and being in the county of Qctilbeha, state aforesaid, and more distinctly known as the east half and the southwest quarter of section No. 7 j and the east half of the southeast quarter of section No. 6 ; and the west half of t-he southwest quarter of section No. 5, all of township seventeen north, of range thirteen east, in the Columbus District.” No objection whatever is perceived to this description. It was said in argument that the range was omitted, but this seems to have been a mistake. There is a discrepancy between the description given in the bond, and that given in the deed in this, the bond calls for an eighth in section four, and the deed for an eighth in section six. If the deed be wrong, it may be reformed to correspond with the bond. The error, however, is most probably in the bond. No objection was raised to the covenants in the deed, and we must therefore suppose, that in this respect it is satisfactory. If it has been received by the heirs as a good deed, it amounts to a compliance with the bond. The only objection that could be urged to it is, that it only expresses on its face to warrant as against the grantor and .his heirs. It however contains the words grant, bargain, sell, which are declared to be equivalent to a warranty of an indefeasible estate in fee-simple, and the seisin of the grantor. Whether the subsequent express warranty, as against the grantor and his heirs, limits this statutory warranty or not, we give no opinion. Even if it should do so. the title may still be complete within the language of the bond. The heirs are now the proper parties to object to it — they have not done so, and it may well be doubted whether the administrators can bring their title in question, arid whether we could so adjudicate on it as to declare it inoperative for the purposes of this defence, as the heirs are not parties to the suit. If the title be complete, as it may be, even without general warranty, then Noland has performed his contract. There are cases in which a performance in effect, though not in manner, will be sufficient. Worsley v. Wood, 6 T. R. 722; Co. Lit. 207 a. If Noland derived his title directly from the United States, it is likely to be as good without a general warranty as with it, as the chances of an outstanding title are so remote as to make a general warranty very much a matter of form. A warranty does not pass the title; it only secures an indemnity if there be incumbrances.

The judgment must be affirmed.  