
    COURT OF APPEALS, JUNE TERM, 1822.
    Hughes vs. Sellers, Adm’r. of Rea.
    wvn a pier be^nn’1 answer <-x-of the counts in a declaration, it is to be taken as a plea to (be wlio’e declaration,and a a^seonti"ume“k Mi MÍbona:'gi?í¡n^«“kbondfiof S»i,e'Vf”the0fiieS"t'rc™vcya™e íioíft'V'the '¡nob“nt'on>h,>mU1to XcNwnií°of veysmee; ami Ins not doing so, decs the pica bad uiion demurrer.
    Appeal from Harford county court. Debt on a bond* The declaration contained two counts—The first was in t]ie usual foi'm; and the second as follows, viz. “And . whereas the defendant, (now appellant,) by another writ- ' _ T {nfi. obligatory dated the 28th day of January 180S,- sealed with his seal, acknowledged himself to be held and lirmly bound unto the said George Rea in his life time, in another of SS2°0 current money, to be paid unto the said George Rea, his heirs, executors, administrators or assigns-, when afterwards lie should be thereunto required, which writing obligatory was and is subject to a certain condition written, whereby, after reciting to the effect following, to wit, that if the above bound Samuel Hughes, his heirs, executors or administrators, should well and trupay unto the above named George Rea, his heirs, execuJ 1 J 1-. e administrators or assigns, the full and just sum or 7 0 . , gi 600, in the following manner, to wit, goOO thereof in. thirty days from the date last aforesaid, and the remaining glOQO in one year from the said 28th day of January 1813, provided that the said George Rea should well and truly convey unto the said Samuel Hughes, by a good deed in. law, two hundred acres of land, agreeably to his bond 'of the date last aforesaid, then the said obligation to be void, otherwise to be and remain in full force and virtue in law; and the plaintiff avérs, that as administrator of the said Rea as aforesaid, he did, on the 19th of September 1815, procure a good and valid deed in law to be legally executed by Abraham Sellers, &c. the sole heirs and legal representatives of the said Rea deceased, in pursuance of the bond of conveyance aforesaid of the said Rea-, and the said deed so legally executed, the plaintiff, administrator as aforesaid, did on the 27th of September 1815, tender to the defohdant, and request him to accept the sanie as a fulfilment of the agreement contained in the said bond of conveyance by the said Rea to the defendant, but the defendant refused to accept the same, to wit, at the county 'of Harford aforesaid, by means of which said premises an action hath accrued to him the plaintiff, administrator as aforesaid, to have and demand of and from the defendant the said sum of §3200, above demanded; yet the defendant, although often requested,” &c. The defendant, by his plea, craved oyer of the bond, which was set out, viz. isKnow all men,” &c. “The condition of the above obligation is such, that if the above bound Samuel Hughes, his heirs, executors or administrators, shall well and truly pay unto the above named George Rea, his heirs, executors, administrators or assigns, the full and just sum of §1600, in the following manner, to wit, §600 thereof in thirty days from this date, and the remaining §1000 in one year from this date, provided that the said George Rea shall well and truly convey to the said Samuel Hughes, by a good deed in law, two hundred acres of land, agreeably to his bond of this date, then the above obligation to be void, or otherwise to be and remain in full force and virtue in law.” He then proceeded as follows, viz. ‘ ‘And as to the breach of covenant above assigned, he says, that the plaintiff his action aforesaid ‘hereof against him the defendant to have or maintain ought not, because he says, that according to the tenor, of the said bond, and the condition thereof, Rea, the intestate of the plaintiff, was bound to convey two hundred acres of land, by a good deed in law, to the defendant, during the life-time of the said intestate, and before the right to claim the.money in the said declaration and in the said bond mentioned, could accrue; nevertheless the said intestate neglected, failed, and refused to convey as aforesaid to the defendant; during the life-time of him the said iutestate, to wit,, at the county of Harford, contrary to the tenor - of the aforesaid bond and condition; and the covenant of the said intestate, being a condition precedent to. the performance of the covenant of the defendant, he ouglit not to be bound to the performance of his covenant, because the said intestate did not; and the plaintiff cannot fulfil the aforesaid covenant of the said intestate, wherefore lié prays judgment, if the plaintiff his action aforesaid thereupon against him to have or maintain ought,” &c. Td this plea there was a general demurrer; and joinder in demurrer. The county court ruled the demurrer good; and gave judgment for the plaintiff; and the defendant appealed to this court;
    The cause was argued befóte Chase, CL J. Buchanan; Earle; and Stephen; J.
    ■ Winder, for the appellant.
    1. The proviso in the bond was a condition precedent—a conveyance was to be executed for the land before payment of the purchase money.-2. The averment in the declaration was not properly made. 3. As there was no answer to one of the counts in the declaration, judgment should have been taken by default ore the count not answered. The defendant’s plea seemed to-be to the second count; but it did not appear to be specially applied to either. He cited 5 Bac. Jib. tit; Pleas; &c. (Pi) 4; The obligation to convey was a personal one on Reaj and could not be performed by his heirs. He cited 1 Bac. Jib. tit. Conditions; (P.) 661; 662, 668. Co¿ Litt. 210; By-' er, 180; 181. 5 Coke, 96.
    
      Raymond, for tlie appéíleé,
    said, tiiat lie relied upon! thé first count, and the second might be stricken out; that the' plea was to- the first count. The bond of conveyance being in the defendants possession',- lie' ought to have alleged it in his plea, and set it out. Where there Ore mutual and-independent covenants in separate instruments of writing,each party must rely upon the covenant to himself. Be> cited Pordage, vs. Cole, 1 Saund. 320, (note 4.) Terry vs. Duntze, 2 H. Blk. Rep. 389. Campbell vs. Jones, 6 T. R. 579; and St. Mbans vs. Shore, 1II. Elk. Rep. 270.
   Buchanan, J.

delivered the opinion of ¿he, court. The suggestion by the counsel for the defendant below, that the plea in this case is to one only of the counts in the declaration, and that the whole action is discontinued by reason, of the plaintiff’s not having taken his judgment by nil dicit on the other count, is not sustained.

The plea does not profess to be an answer exclusively to. either count, and as it is not an easy matter, if at all practicable, to, determine to which it most strongly applies, it would have, been exceedingly difficult for the plaintiff to, ascertain on which count to have taken his. judgment. Tt must therefore, be. construed most strongly agajnst the defendant; and. as. a plea to the whole, declaration, and so understood, the demurr.er did not work a discontinuance. The condition of, the bond,on which the suit was instituted, refers generally to a bond of conveyance to the defendant, which belongs to him,., and fpr any thing appearing, is in. his possession, and on which he relies as containing a con-; dition precedent to the payment of the money.

It was incumbent therefore.on him to have made profert g£ that bond, and to, ha.ve, set out the.contents, in order, that the plaintiff might have craved oyer - and demurred, or replied to the plea, according to, circumstances, and also; to have enabled the court to decide* whethei; the conveyance of the land was. a condition precedent, and what .as-, surance was required by that instrument to be made.

But instead of doing this, after oyer of the bond. on. which this suit was brought, and.of, condition, the plea, in substance only alleges, generally, that a conveyance of two hundred acres of land by, George Rea, the obligee, in. his life-time, tó the defendant, was a condition precedent to the payment of the money; that he did not- make the conveyance, and therefore that the defendant ivas not-bound to pay, &c. without making profert of- the bond of conveyance, or attempting to set out any part of it, which is clearly a bad plea, and the court below did right in sustaining the demurrer.

JUDGMENT AFFIRMED.  