
    Robert M'Cants against J. B. M'Connell and J. H. M'Connell.
    Charleston,
    May, 1817.
    „ a bond given, Conditioned to Sod6by “certain day — 'titles made on the day, but being: defective, werecmade some time after; and rfght of action on gone:1’™? soihe bond could not be aSiontaSupon ®S cnteatIiath¡assfmé time for the purchase money,
    This Case was tried before Mr. Justice Grimk'e, at Williamsburgh, in March Term, i 811.
    __ . . . * 1 his was an action of assumpsit on a promis» a I soi’v note made by the defendants to the plaintiff , . J he defence was, that the note m question was given as part of the purchase of a tract of land, . . and that the plaintiff by his bond had undertaken, under a penalty of $1000, to make titles to A the said land to the defendant, J. B. M-Conndl, on the 1st day of April, 1807, and that the plaintiff had not made the titles agreeably to the condition of this bond.
    The evidence on this point was, that the plaintiff, on the day on which by the condition he was to execute titles, had delivered to the defendant, J. B. McConnell, a title-deed, but that it neither contained a date nor a renunciation of his wife’s dower. The plaintiff finding that the defendant was dissatisfied with this title-deed, afterwards, on the 8th of March, 1809, presented another title-deed to the said defendant, J. B. JlBConnell, free from the objections made to the first, and afterwards commenced this action. On this evidence the Jury found a verdict for the plaintiff for the full amount of the note.
    A motion was made for a new trial, on the ground that the verdict was contrary to law, inasmueh as sufficient titles were not presented within the time specified in the bond, and not until nearly two years after, to wit, on the 8tbi of March, 1809.
   Johnson, J.

delivered the opinion of the Court.

Admitting that the ground taken for a new trial in this case was itself a sufficient legal objection, yet I should be disposed to think that the delivery of the first deed was a literal compliance with the condition of the bond. The date is not a substantive part of the deed, and may be supplied by parole; at any rate, it will take effect from the time of the delivery, whether it has a date or not; and although it bear a date, it will not take effect from it, unless it is cotemporaneous with the delivery ; nor do I think the objection that the renunciation of the wife’s dower did not accompany it, is better founded. But I proceed to the consideration of the question made in the brief.

The undertakings of the plaintiff to make titles, and of the defendants to pay the note, although they may be regarded as mutual, are notwithstanding separate and independent, for the breach of which either party had a right of action ; the plaintiff having then complied with the condition of his bond, by the delivery of an unexceptionable deed before an action “was commenced against him, the defendant’s right of action was gone, and could not be set off against the present action. Upon the same principle, I am of opinion that the tender or delivery of a deed, accompanied by an abstract of the plaintiff’s title, at the trial, would have been considered such a compliance with the condition of the bond as to entitle the plaintiff to recover.

I am therefore of opinion that the motion for a new trial ought to be refused.

The other Judges concurred.  