
    *McCoy’s Administrators v. Bixbee’s Administrators.
    Covenant to convey a tract of land, specifying no time of conveyance, and a covenant to pay therefor so much money in hand, and so much at a futura day, are mutual covenants.
    In such case the purchaser can not have a cause of action, without averring the payment or tender of the purchase money.
    This case was reserved here for decision in the county of Delaware. The declaration was in covenant .upon an article of agreement, dated August 12, 1811, by which Bixbee, for and in consideration of (McCoy’s) covenants thereinafter contained, covenanted to execute and deliver to McCoy a good deed for one hundred and twelve acres of land, without fixing any time for the conveyance; and McCoy covenanted to pay therefor seven hundred and eighty-four dollars, as follows: three hundred and ninety-two dollars on demand, and the balance of three hundred and ninety-two dollars in five years from the date, with interest after eighteen months until paid.
    The first count in the declaration avers a general performance by the plaintiffs’ intestate, and assigns for breach the non-execution of the deed by Bixbee.
    The second avers the plaintiffs’ request for the deed, and the defendants’ refusal.
    The third describes the covenant to convey on request, and avers a request and refusal.
    The fourth describes the covenant as one to convey in a reasonable time, which elapsed before May 1, 1830; that a third person then held the legal title, and assigns for breach the non-conveyance.
    The article is set out on- oyer, and the defendants demur generally to these four counts of the declaration, which is joined.
    G. Swan, for the defendants:
    Insisted that the covenants were mutual and dependent, or that in any event the payment of one-half the purchase money, and the delivery of the deed, are simultaneous acts, and neither party can recover in such eases without averring performance, or an offer to perform, or making excuse for the non performanee. 1 Salk. 112; Doug. 691; 4 Term, 125; 1 Saund. 320, n. 4; 2 Bibb, 614; 3 Bibb, 290; 15 Mass. 500; 10 Johns. 203; 1 Ohio, 341; 5 Lit. 66; 6 Monroe, 361; 2 Johns. 145; 8 Mod. 68, 381; 2 H. Blk. 123.
    P. B. Wilcox, for the plaintiff:
    *The question is, at what time was Bixbee legally bound to execute the deed to McCoy? Was it a reasonable time after the contract was made, or upon the payment of the first installment, due on demand, or the second installment, due in five years ?
    No specific day is named in the contract. No mention is made of any event or contingency, upon the happening or not happening of which the conveyance is to be made, such as “ upon payment,” or “as soon as paid,” or “when paid,” etc., which ordinarily occur in contracts of this kind. The deed is evidently to be mad® at some, future period, which period is not designated, either by day, month, or year, nor by any future contingency. It would seem, therefore, that this case must come within the rule, that whore no time is fixed by the parties, the law will fix it for them, namely, a reasonable time after the execution of the contract; which reasonable time, the fourth count alleges, and the demurrer admits, has elapsed. Is not this the only question in the case?
    The defendants’' argument assumes that these are concurrent acts, to be performed by both parties. What are these concurrent acts ? Bixbee covenants to make a deed at some indefinite period. McCoy covenants to pay three hundred and ninety-two dollars on demand (which is a time certain, because it can be rendered certain by the party), and three hundred and ninety-two dollars in five years. Now, at what point of time is this concurrency of acts to take place? The defendants’ counsel seem to think it should be on the payment of the first three hundred and ninety-two dollars. The only objection to this is, that the contract does not say so, nor anything else authorizing such an inference. The first payment is to be made on demand, i. e., at the convenience of Bixbee, but the contract does not say that the deed may likewise be made at his convenience. The second payment is at the expiration of five years. What is there in the contract that looks to the time when the deed is to be made ? It is true that abstractly the vendor is presumed to intend to hold the title, until he receives the purchase money, but must not such intention appear, or rather the contrary not appear, on the face of the contract. In the present case, Bixbee “for and in consideration of the said McCoy’s covenants and agreements hereinafter contained,” bound himself to convey, etc. If these words mean anything, Bixbe^ did not intend to rely upon the land as security, but upon the “agreements and covenants ” of McCoy. These *words may be [812 technical or mere words of course, but in the absence of all others of an opposite character, is it not reasonable to give them their appropriate meaning?
    The last clause of the first rule, 1 Saund. 320, n. 4, and page 4 of the note, seems to be applicable. The rule is, “ if a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such act, before performance ; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent;' and so it is where no time is fixed for performance of that, which is the consideration of the money or other act.”
    Upon this principle, McCoy’s right of action was perfect, after the lap.se of a reasonable time for the execution of the deed, and Bixbee’s right of action was perfect for the first installment whenever he chose to enforce it, and for the last installment at the expiration of the five years.
   Judge Wright

delivered the opinion of the court:

The points raised by the demurrer make it necessary for us to construe the covenant between these parties. Bixbee, in consideration of McCoy’s undertaking to pay him for a tract of land, covenanted to convey him the land, without mentioning any time for the bonveyance. McCoy stipulated to pay one-half the purchase money on demand, and the remainder in five years, with interest after eighteen months. The common sense construction of this contract, in the opinion of the court, is the legal one. Bixbee did not manifest a clear intention to convey away his land to another, and rely upon the mere promise of the person he conveyed to to pay him for it. Such a contract, or intention, would be so manifestly against his interests, and the common and usual mode of selling land on credit, that the presumption is against it, and clear expressions are required to authorize such a construction. The consideration of the covenant to convey, is said to be the promise to pay by McCoy. We think this too narrow a construction. The performance by McCoy of his covenants, the payment of the money, was the only real, substantial consideration of the promise to convey by Bixbee. To determine otherwise seems to us the substitution of the shadow 313] *for the substance. Mere words should be construed according to the evident intention of the parties using them. 1 Ohio, 341; 4 Ohio, 593. Why did these parties omit to fix the time for making the deed ? Evidently in order to entitle McCoy to the deed whenever he paid his money. He had the option of a credit of the whole purchase for five years unless Bixbee demanded one-half of it before. It would be unreasonable to construe this so as to compel Bixbee to convey away his land without being paid for it, and to rely upon the mere promise of his grantee to pay; and being unreasonable, we can not suppose it was his intention so to contract. As we understand the law applicable to such contracts, it gives no force to technical constructions when opposed to the intention of the parties.

It follows from our opinion that if McCoy, the plaintiff, would show a good’ title to sue on the covenant of Bixbee, he must aver either that he has paid the money, or that he has tendered, and is ready and willing to pay. That is the condition of the contract upon which the right to sue depends. The absence of such averment, in either count of the declaration, is a fatal objection. The demurrer is sustained.  