
    [Chambersburg,
    Oct. 21, 1822.]
    KNOX against RINEHART.
    IN ERROR.
    In covenant on an agreement to make the plaintiff a title on a day certain, in con. sideration of which he was to give bonds, if he aver a readiness to perform, and the defendant puts in issue, by his plea, the plaintift’s readiness to perform, it is sufficient on the trial, if the plaintiff show that the defendant had no title'on the day: he is not bound to show performance or tender.
    Error to the Court of Common Pleas- of the county of Cumberland.
    
    Covenant in the court below, bjr Barnhart Rinehart against Joseph Knox. The first count of the declaration set forth articles of agreement between the parties, dated 29th Dec. 1808, by which it was agreed, that the said Joseph should and would, on the first of April ensuing, by a good and sufficient title with a general warranty, (quit rents excepted,) well and sufficiently grant, convey, and assure unto the said Rinehart, his heirs, and assigns, a certain tenement and lot of ground in Carlisle; in consideration whereof, the said Rinehart covenanted, that he should and would, well and truly pay, or cause to be paid, to the said Knox, £900, in manner following, viz. 100 dollars in hand; 900 dollars on the 1st April, next ensuing, and the residue in four equal annual payments from the said day ; and that he would give security for the instalments.. Breach, that though the said Rinehart, from the time of .the making of the said agreement, hath always, hitherto, been ready to perform all and singular those things in the same agreement contained, which, on his part, were to be performed, according to the true intent and meaning thereof, yet the said Khox had not conveyed the said tenement and lot of ground, &c. though requested, on the said first day of April, 1809; &c. The second count stated, that the defendant had not good right, power, or lawful authority, to convey the premises to the plaintiff. The defendant pleaded covenants performed, with leave to give the special matters in evidence, abs-que hoc, &c. and non infregil conventiones.
    
    On the trial, the articles of agreement as setforth in the declaration were proved, and it appeared, that the plaintiff had paid 100 dollars on the execution of the articles, and on the 1st of April, 1809, tendered 900 dollars to the defendant, and demanded a deed. The defendant, however, did not execute any deed, stating, that he had not then the title. It appeared, that in November, 1809, three months after this suit was brought, the defendant acquired the legal title to the premises.
    In answer to a question put by the defendant, the court charged the jury, that it was not incumbent on the plaintiff, under the circumstances of the case, to have tendered bonds with security, for the instalments, prior to the commencement of this suit. The de-fenclant’s want of title, and his acknowledgment of this, on the tender of the 900 dollars, absolved the plaintiff from the necessity of tendering bonds.
    The jury gave a verdict for Rinehart, the plaintiff below, for the 100 dollars paid and interest, and judgment was rendered thereon. Error was assigned in the charge of the court, and
    
      Carothers, for the plaintiff in error,
    contended, that the plaintiff was not entitled to recover, without showing, that he did every thing which he had covenanted to do. He ought, therefore, to have shown, a tender of bonds for the instalments of the purchase money, as well as of the 900 dollars. The payment and security of the purchase money are conditions precedent; and the plaintiff must show, that he did all in his power towards performance of the conditions. He avers in the declaration, that he was ready to perform, and this averment is traversed by the plea. He cited 2 Powell on Coni. 19. Zerger v. Sailor, 6 Binn. 24.
    
    
      Mahon ánd Melzgar, contra,
    insisted, that the covenants were independent The'conveyance was first to be executed, and after-wards, on the same day, the purchase money was to be secured. The plaintiff, therefore, avers, not that he had performed or tendered, but that he was ready: he is not bound to show performance. They cited, 1 Esp. N: P. 135. 2 Johns. 272. Wilcox v. Ten Eyck, 5 Johns. 78. 8 Johns. 257. 1 Sound. 320. 15 Johns. 303.
    
      Carothers, in reply,
    observed, that if it were true, that the covenants were independent, Knox might recover the purchase money, although he could not make a title.
   The opinion of the court was delivered by

Gibson, J.

"It is unnecessary to decide, whether a tender of bonds according, to1 the plaintiff’s covenant, was a condition precedent to bringing suit: the affirmative of that question seems to be conceded on the pleadings; and for the purposes of the argument I shall consider the covenants as dependent. The plaintiff averred, that he had always been “ ready to perform all and .singular those things in the same agreement contained, which on his part were to be performed, according to the true intent and meaning thereof;” but without averring actual performance or a tender, or setting out, as he ought to have done, the circumstance on which he relied at the trial as a valid excuse for the want of either, and which was in fact so — the conceded inability of the defendant to convey an unimpeachable title at the time stipulated: for without showing something to excuse actual performance or a tender, an averment of mere readiness and willingness is insufficient on demurrer, or in error, where the judgment is by default. The defendant pleaded covenants performed, and non infregit conventiones, with a special traverse of the plaintiff’s averment. Now all that was put in issue, by this, was the plaintiff’s readiness: not actual performance on his part, or a tender of performance. Proof of the facts, required by the defendant, would therefore not have been pertinent. Suppose the matter of excuse had been pleaded properly — it will not be contended, the plaintiff would still have to prove perform-r anee or a tender; and if it be pleaded defectively, that will not change the nature of the proof: the plaintiff will have to prove the matter of excuse, just as if it were well pleaded; and it is precisely for this reason a defective averment of this sort, is held good after verdict. I can therefore see no error in the direction to the jury.

Judgment affirmed.  