
    The Trustees of Section 16 v. Miller.
    Surety for making improvements not bound, where plaintiff, by Ms own act, prevents them from being made.
    Tried before Judges Hitchcock and Burnet, in Montgomery county, 1827.
    This was an action of debt. The declaration contained a count on a recognizance of bail, and also a count on a bond. To the first count, there was no defense. As to the second count, the defendant relied on a proviso contained in the condition of the bond.
    The facts were these: One Crocket took a lease on part of the school section, and to secure the performance of his covenants, gave a bond, with the defendant, Miller, as his security. The condition of the bond contained a proviso, that if the lessee should complete the improvements required by the lease, within the period of four years, then, and in that case, the defendant, Miller, should be bound for the rent of the first year only. The suit on the bond was brought to recover the rent for the second, third, and fourth years. The recognizance was given for the rent of the first year. *The plaintiffs gave in evidence the recognizance of bail, to support their first count, and the bond to support the second. The defendant then proved that after the expiration of the lease, the rent not being paid, the trustees proceeded, according to the provisions of the statute, to dispossess the lessee, which was done before the expiration of the term of four years, allowed for the completion of the improvements. He then'called a number of witnesses, for the purpose of showing that the improvements were completed by Crocket before he was dispossessed; on which a question arose whether the evidence was not superfluous, on the ground that, as by the terms of the contract, the defendant was to be discharged from his liability, provided the improvements were made by the lessee within the term of four years, and as the plaintiffs had dispossessed him before the expiration of the time, they could not be allowed to exact from the defendant the penalty of a non-performance, admitting that the improvements had not been made.
   By the Court :

When Miller became security for Crocket, he relied on his ability to perform the condition within the time stipulated. He had, by his contract, a right to the benefit of the whole term. Although the labor might not have been completed when he was turned out of possession, it does not follow that it would not have been done if the plaintiffs had not put it out of his power to proceed.

It is no answer to the objection, that the statute made it the duty of the trustees to proceed as they did. They have, no doubt, been influenced by considerations of duty; but' if in the discharge of duty, they have prevented the performance of a condition, on the non-performance of which, a penalty was to attach, they must submit to the consequences. It is immaterial to the defendant by what motives they were influenced. The consequences to him are the same. He stipulated for a conditional liability, or for a liability to be discharged on the performance of certain conditions in a given time, and he was entitled to the whole' of that time to perform those conditions, or to cause them to be performed. If he who is to be benefited by the performance *of a contract, is the cause why it is not performed, the contract is dissolved, and the party bound is discharged from his obligation, and will be in the same situation as if he had performed it.

This rule of law applies with great force to cases where improvements are made on real estate, and the party for whose benefit they are to be made, prevents them from being done, by dispossessing the party bound, or by preventing him from entering on the premises. Here, the trustees re-entered, removed Crocket, and leased the land to a third person, who took possession, so that neither Crocket nor the defendant could enter, for the purpose of performing the condition, without being liable to an action of trespass.

The rule which governs this case is just and equitable, and the case itself is illustrative of the oppression that might be practiced, were it otherwise. By the terms of the bond, the obligors had the whole term of four years to make the improvements. They had a right, if they saw proper, to defer them till the last year. Of course, the condition was not broken, nor was the right of performing it forfeited, when the trustees made it unlawful for the defendants to proceed any further. From the testimony already heard, it appears that the improvements were nearly, if not entirely completed, before the possession was changed ; and it is a fair inference that they would have been finished in good faith, if Crocket had not been dispossessed. We mention this merely to show that there was no disposition, on the part of the defendants, to evade their duty, and that if it has not been fully performed, the blame lies at the door of the plaintiffs.

On the intimation of this opinion, the plaintiffs abandoned their second count, and took a verdict for the amount of the recognizance, being the rent for the first year.  