
    William P. Standifer vs. Israel N. Davis.
    Where a bond is given conditioned, in consideration of a sum paid in cash, to make title on a given day, the obligor is not in fault, and no action can be maintained against him on the bond, until the obligee has demanded a deed; and unless upon such demand, the obligor prepare and tender the deed to the obligee, his bond is forfeited, and he is liable to an action upon it.
    It is, therefore, in an action on such a bond, sufficient for the plaintiff merely to allege a demand of the deed; he need not allege that he had prepared and presented it for execution.
    In error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge.
    William P. Standifer, on the 6th of September, 1847, sued Israel N. Davis in debt upon a bond, dated 9th of August, 1847, in the penalty of one thousand dollars, conditioned, that if Davis, in consideration of five hundred dollars paid to him in hand, should “make and deliver a good and lawful deed to the described lands, by the first of September next, then the obligation was to be void, otherwise in full force and virtue.”
    The original declaration contained two counts, one on the bond without noticing the condition; the other setting out the condition, and alleging as a breach of it, that “ Davis, though often requested to perform the obligation and make a deed to the land, had failed to do so.” The defendant demurred to the second count in this declaration, the demurrer was sustained, and leave to amend given. The amendment, after reciting the bond and condition, alleged as a breach of the latter, that the defendant “did not make and deliver by the first day of September, A. D., 1847, a good and lawful deed to the aforesaid lands, as in said condition specified; nor did not, nor would at any time whatever, make and deliver a deed to the aforesaid land, although often requested so to do, although demand of said deed has, at divers times, been made of the said defendant.”
    To the first count, the defendant set out the condition of the bond, and plead, 1, that he was “ ready, willing, and able to make and deliver a good and lawful deed to the land ” on the day named; and by his plea “offered and tendered a good and lawful deed.”
    2. That the plaintiff had not on the day named demanded a deed, nor prepared or tendered him one for execution.
    To the first plea the plaintiff replied, in substance, that the defendant had not made and tendered a deed in the time stipulated by the obligation, and he was not bound to accept the deed tendered with the plea.
    To the second plea, he replied that he was not bound by the bond to demand or prepare a deed for defendant.
    The defendant filed with his pleas, a deed from himself and wife to the plaintiff, conveying the land with warranty for the consideration recited of five hundred dollars; the deed being dated, and acknowledged before a justice, on the 10th of August, 1847.
    The defendant demurred to the amended declaration, and also to the replications of the plaintiff; the court below sustained both demurrers ; and the plaintiff refusing to answer over, gave judgment for the defendant; when the plaintiff sued out this writ of error.
    Bullard, for plaintiff in error.
    1. The plaintiff has performed his part. He has paid the purchase 'money; nothing more remains for him to do.
    2. Has the defendant discharged his obligation? He should have delivered á deed. Chitty on Con. 272, 273; Comyn on Con. 56; Story on Con. 42S; 1 Black, b. 2, p. 306, n. 17.
    3. The defendant is liable for such failure. Comyn on Con. 137; Story bn Con. § 662-670; lb. p. 404; 2 Starkie on Evid. 619-621; lb. note, p. 620.
    4. The plaintiff has a right to elect, to proceed for breach of covenant or for the penalty. Comyn on Con. 47; Chitty on Con. 339.
    5. To what amount is the defendant liable? The whole penalty. Comyn on Con. 38-41; Chitty on Con. 337-339; 2 Starkie on Evid. note, p. 620.
    6. Demand is not necessary under this bond and condition. Chitty on Plead. 272, 273; lb. 275; Comyn on Con. 56, 57;' Story on Con. 404-407; 1 Black, b. 2, p. 306, n. 17; 2 Starkie on Evid. 619-621; lb. note, p. 620; Am. Ch. Dig. 241, 242.
    7. If the defendant did not perform his obligation, we could rescind the contract, and sue for the penalty. Story on Con. 404-406, &c.; Comyn on Con. 47; Chitty on Con. 339.
    
      Reuben Davis, for defendant in error,
    relied on Johnson v. Beard, 7 S. & M. 214.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an action of debt, founded upon a bond to make title to a tract of land, by the first day of September then next ensuing, in consideration of five hundred dollars in hand paid. It would seem from the pleadings, which are a good deal complicated, that the case is brought here to settle the point, whether an action will lie upon such bond, until the deed has been prepared by the vendee, presented to the vendor for execution, and the title demanded; or at least until the title has been demanded. In other words, can the action be sustained, after the day fixed for making the title has passed, without any step taken to put the covenantor in default? This suit was brought on the 6th day of September, 1847. The defendant, in one of his pleas, alleges that he was always ready to make a deed as required by his title bond, and he tenders with his plea, a deed which was executed on the 10th of August, 1847, to which no objection appears, except that it was not tendered on the day required by the title bond.

We will first make some remarks upon the point presented in this state of the pleadings, and afterwards upon the amendment, which presents it in another shape. The plain meaning of the covenant of the defendant is, that he should prepare the conveyance by the time stipulated. It is an obligation taken upon himself. That is the substance of his agreement, and he cannot shield himself, by saying the covenantee ought to prepare the conveyance. This is the rule in New York and in Pennsylvania, and it was formerly the rule in England. But in the latter country, the intricacy of titles has produced a change, and it is now the practice for the solicitor of the vendor, to prepare an abstract of the title, and deliver it to the solicitor of the vendee for examination, who, if he approves it, prepares the conveyance. Connelly v. Pierce, 7 Wend. 130; Sweitzer v. Hummel, 3 S. & R. 230; Sug. Ven. 296 ; Johnson v. Beard, 7 S. & M. 214. In New York it is decided, however, that the covenantee must demand the deed, and wait a reasonable time for its preparation, before he can maintain an action. Connelly v. Pierce, ut supra. It is clear that either the vendor must go in search of the vendee, to make delivery of the d.ced, where no place is stipulated for that purpose, or that the vendee must go to the vendor, or to his residence, to make demand of it. This court has decided, that in actions upon covenants, in regard to realty, the party plaintiff must put the other party in default, before he can recover. Stockton v. George, 7 How. R. 172.

The covenantor here, could not, with certainty, be said to be in default, until demand made upon him for the deed. If the commencement of the suit be regarded as a demand, then the plea of tender of the deed in court, with an averment that he was ready at the day to make it, must be a sufficient answer. There may be cases which would excuse the want of a demand, as absence of the party, or a wilful keeping out of the way to avoid it. But in this instance no peculiar circumstances are shown to exist. On the whole, we come to the conclusion, that the vendee must demand the deed, in a covenant like this, before he can maintain his action; but that it is the duty of the vendor to prepare it.

The second count of the amended declaration avers a demand of the deed, at divers times, and a failure on the part of the defendant to make it. To this a demurrer was filed, and the causes assigned are, 1st, that no demand of the deed is alleged to have been made before suit brought; and, 2d, that it is not averred that plaintiff prepared a deed, and presented it to defendant for his execution before suit brought. This demurrer was sustained. From what has already been said, it will be seen that the second cause [assigned was not well taken. There was no necessity for such averment. The declaration contains a sufficient allegation of the demand of the deed. The demurrer, therefore, should have been overruled.' Whether the demand were made before the suit was brought, was a question of fact, for the determination of the jury. For the error in sustaining the demurrer to a declaration, which was good, the judgment will be reversed, and the cause remanded.

In Johnson v. Beard. 7 S. & M. 214, it was not decided, whether it was sufficient to allege a demand, or whether it was necessary also to allege that the plaintiff had prepared the deed, and presented it for execution. We now hold the former allegation alone to be sufficient.

Judgment reversed, and cause remanded.  