
    Hugh H. Fultz vs. John F. House.
    He who wishes to avail himself of a contract containing conditions precedent on his part to be performed, in pleading, must plead performance of those conditions precedent, and in making proof, must prove performance of them.
    H. executed a deed of trust on certain slaves and other property to F. as trustee, to secure E. in the payment of certain notes due him by H. After the execution of the notes and deed of trust, H. and E, had an agreement, by which they arranged the terms of the settlement of the debt and deed of trust; part of those terms were, that H. by a day named, was to deliver up to E. the slaves named in the deed of trust; at the end of this agreement was this clause:- “Whenever the above stipulations of compromise ate complied with, it is to be a full settlement of all debts and demands of either party against the other, and a full release either at law or in equity.” H. having failed to deliver the negroes to E. as stipulated, F., the trustee, brought an action of replevin against J. H., who had one of them .in possession, for the slave; the court below instructed the jury on the trial of the replevin, that the agreement of compromise changed the title to the slaves out of F. the trustee, and vested it in E., who alone could recover : Held, that the instruction was erroneous ; that no part of the agreement went into effect until H. had performed his condition precedent of delivering the slaves to E.
    On appeal, from the Holmes circuit court; Hon. Morgan L. Fitch, judge.
    In January, 1844, Hugh H. Fultz brought an action of replevin against John F. House, to recover possession of the slaves Silas, Nancy, Ann, Levi, Mary and her infant child. House gave bond for the forthcoming of the slaves, and a trial being had as upon issue joined, though no plea appeared in the record, a verdict was rendered for the defendant.
    A bill of exceptions was signed upon the trial, from which the following facts in substance appear:
    In support of the plaintiff’s title, he read a deed of trust dated April 2, 1840, made by James Hurst of the first part, the plaintiff and James M. Dyer of the second part, and James R. Enloe of the third, part, by which Hurst conveyed a tract of land, a number of slaves, including those in controversy, and other property, to Fultz and Dyer, as trustees, to secure to Enloe the payment of certain notes specified in the deed. A power of sale was given to the trustees, or either of them, in default of payment, and authority to take possession of the land and slaves for the purpose of sale. It was admitted that the slaves in controversy were portion of those embraced in the deed of trust, and had been in the county ever since the execution and record of the deed. The plaintiff here closed his case.
    The defendant then read to the jury an agreement between Hurst and Enloe; the plaintiff objected to its introduction, but .the objection being overruled, he excepted. That agreement was in these words, viz.:
    “ An agreement entered into between James Hurst and James R. Enloe, to compromise a certain suit now pending in the superior court of chancery, wherein said Hurst is complainant, and said Enloe and others are defendants, witnesseth, that the said Hurst is to pay and satisfy three judgments now pending in Holmes circuit court, one in favor of Nelson &■ Co. for about $300, including costs, interest and principal, up to this date; and one in'which said Hurst was summoned as a garnishee, and had a judgment entered against him_to the amount of about $200 interest, costs and all; and one in favor of Anderson Adams, for about $2400 ; and to pay off and satisfy in full a judgment in which said Hurst is bound as security in the forthcoming bond, to wit, the case,of Charles L. McGehe v. James R. Enloe, and which said Hurst has enjoined, and which is now pending in the superior court of chancery of the state of Mississippi; and to return the negro man Solomon, heretofore sold to said Hurst by said Enloe, or to return one as valuable in his stead; and to return and redeliver to said Enloe all the other negroes and their increase, to the said Enloe on the 25th day of December, 1843; all of the stipulations of the above agreement are to be complied with by the 25th of December, 1843; and said Hurst is to deliver said boy Washington, one of said negroes, forthwith.
    
      “ Said Enloe is to release said deed of trust, given by said Hurst to trustees for his use, so far as relates to the two hundred and thirty-seven acres of land, on which the improvement is situated, and to deliver up all of said notes, secured under said deed, and all other notes against said Hurst, except the one due in January, 1843, under which the lands, except the two hundred and thirty-seven acres, are to be sold by the trustees at the request of said Enloe ; and if said land does not pay and satisfy said note, then the residue is to be returned to said Hurst, or credited as he may wish.
    
      “ Whenever the above stipulations of compromise are complied with, it is to be a full settlement and release of all debts and demands of either party against the other, and a full release either in law or equity.”
    This agreement was signed and sealed by the parties on the 10th day of December, 1842.
    James Hurst, one of the parties to the above agreement, being first proved to be a certificated bankrupt, was introduced by the defendant, and testified that on the 4th day of January, 1844, he had settled with Enloe, in which settlement he paid him for the hire of the negroes and rent of the land, in the deed of trust, which were estimated from the time Hurst was declared a bankrupt. The witness also stated that this settlement was made with reference to a bill in chancery, before the Hon. Henry Dickinson, vice chancellor of the state. This bill in chancery, filed by Enloe against Hurst and others, was then read to the jury. It is not deemed requisite to notice the allegations of this bill further than to say, that they showed that Enloe had, in the first place, sold the land and slaves to Hurst, on which Hurst had executed the deed of trust to Fultz and Dyer, to secure the purchase-money.
    Attached to this bill was an agreement by Enloe to dismiss it on Hurst making him certain payments. The plaintiff then offered to prove by Hurst, that Hurst had not paid any of the notes secured by the deed of trust, or the payments specified in the agreements; the court below, however, refused to permit the question to be answered.
    This being all the testimony in the cause, the defendant’s counsel asked the court to instruct the jury, that if they believed from the testimony that James R. Enloe entered into an agreement with James Hurst to release the deed of trust, and that the agreement between said Enloe and Hurst is truly set forth in the written articles of date 10th of December, 1842, then such release discharged the trust deed, and the title to the said negroes vested in Enloe, and the plaintiff cannot maintain this action. To this instruction exception was taken, and the evidence embodied in the record.
    On the rendition of the verdict and judgment for the defendant, the plaintiff appealed.
    The following errors were assigned, viz.:
    1. The court below erred in permitting the agreement entered into on the 10th day of December, 1842, which was to have been executed on the 25th day of December, 1843, and which was objected to by the plaintiff’s counsel, to be read as evidence.
    2. The court below erred in instructing the jury, that if they believed from the testimony that James R. Enloe entered into an agreement with James Hurst to release the deed of trust, and that the agreement between said Enloe and said Hurst was truly set forth in the written article dated the 10th day of December, 1842, that then such release discharged the trust deed, and that the title to said negroes vested in said Enloe, and that the plaintiff could not sustain the action.
    3. The court below erred in refusing to permit the plaintiff to prove by the witness, James Hurst, that he, the said Hurst, had not paid either of the claims specified in said agreement, entered into on the 10th day of December, 1842, and in sustaining the objections raised by the defendant’s counsel to the proving of the same.
    
      James R. Enloe, for appellant.
    1. On the first and second assignment of errors, cited the following authorities : 6 How. R. 187; Willis on Trustees, 206 ; Saunders on Uses and Trusts, 341, 363 ; 5 How. R. 742; Freeman’s Ch. R. 105 ; Jaclcson ex dem. Simmons v. Chase, 2 Johns. R. 84; Jacob’s Law Die. Tit. Interest; Chitty on Contracts, 112; Leigh’s Nisi Prius, 116, 682, 1470; Comyn on Contracts, 141, 142, 143, 146; 2 Black. Comm. 442, 443 ; 4 S. & M. 163; 9 Cow. R. 296 ; 7 Ibid. 290; 8 Johns. R. 96.
    2. On the third assignment of errors, he cited 1 Phil. Ev. 57.
    
      W. E. Miles, for appellee.
    As the only claim the plaintiff relies on is derived from the deed of trust, and as that deed has been released so far as the negroes in controversy are concerned by the beneficiary, I am at a loss to know why this suit was brought, or why it is still pressed. By the compromise between James Hurst, the grantor in the deed of trust, and James R. Enloe, the beneficiary in it, tire whole amount of the debt secured was extinguished, except one note, which by express stipulation was only reserved to effect a sale of the land. ■ This arrangement unquestionably invested Enloe with title to the negroes, and divested the plaintiff of it.
    The title of the plaintiff failing, the action was also compelled to fail. And it was thus rendered unnecessary for the defendant to show any title in himself, or to show how he had derived title.
    There was no error in permitting the agreement entered into between Enloe and Hurst to be read to the jury.
    That the instruction given by the circuit judge is the law, there can be no doubt.
    Whether James Hurst paid .the debts he agreed to pay when the compromise between himself and Enloe was made, makes no difference. That was a thing to be done in the future. The -release took effect at the date of the compromise; and the court, therefore, did not err in refusing to hear proof of their non-payment.
    It does not rest with the plaintiff to object that no plea was filed. He might have taken his judgment by default. But if he failed to do this, and submitted the cause to the jury, and the verdict was found against him, he must abide his own action, and cannot now seek a reversal on that ground.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The plaintiff in error brought replevin for sundry slaves, and in support of his right to recover, introduced a deed made by James Hurst, which conveyed the slaves to the plaintiff as trustee to secure a debt due to Enloe. The title of the grantor was not controverted, but as a defence the defendant relied upon a settlement or compromise, entered into between Enloe the cestui que trust, and Hurst the grantor, which it is said discharged and extinguished the deed of trust, and vested the legal title to the slaves in Enloe, who should have been the plaintiff in the action, instead of Fultz, the trustee. The only question which it is material to consider, arises out of a charge given by the court at the request of defendant’s counsel, in reference to the effect of this settlement.

It would seem that after the execution of the deed of trust, lawsuits had originated between Enloe and Hurst, in regard to this same property, and out of the original conveyance of it by Enloe to Hurst. The agreement of compromise was introduced by the defendant, and the court permitted it to be read, notwithstanding the objection of the plaintiff. The court then charged the jury, that if they believed Enloe had entered into an agreement with Hurst to release the deed of trust, and if the agreement between them was truly set forth in the article bearing date the 10th of December, 1842, then such release discharged the trust deed, vested the legal title in Enloe, and the plaintiff could not maintain this action. The propriety of this instruction depends upon the nature of the agreement.

It bears date the 10th of December, 1842, and professes to be an agreement to compromise a suit in chancery, instituted by Hurst against Enloe and others. Hurst was to pay certain judgments against Enloe; to return a negro man named Solomon, previously sold by Enloe to Hurst, or to substitute one as valuable in his place, and to return and redeliver to Enloe all the other negroes and their increase, on the 25th of December, 1843. One of the negroes, however, was to be delivered forthwith. Enloe was to release the deed of trust given for his benefit by Hurst, so far as it related to two hundred and thirty-seven acres of land, to deliver up all the notes which had been given by Hurst except one, under which one, or for the satisfaction thereof, all the land except that agreed to be released, was to be sold by the trustees. At the end of this agreement there is this clause, to wit: “ whenever the above stipulations of compromise are complied with, it is to be a full settlement of all debts and demands of either party against the other, and a full release, either in law or in equity.”

We gather from the history of this transaction, as disclosed by the record, that the property conveyed in the deed of trust had been sold by Enloe to Hurst, and that the deed of trust had been given to secure the payment of the purchase-money. The legal title vested in the trustee. Passing over the question as to the power of the trustee to make a release, which would be sufficient in a court of law to change the legal title, it is perfectly manifest that the instrument was not intended to have that effect, without a compliance with its conditions on the part of Hurst. It was a compromise to take effect on the 25th of December, 1843, and then only on condition that Hurst should do what he had agreed to do, deliver up the negroes. This delivery constituted the consideration, the essence of the agreement. It was the inducement to the compromise. The last clause constitutes a condition precedent, that the settlement and release were only to take effect, when the stipulations of the compromise were complied with. The general rule here applies that he who wishes to avail himself of a contract containing conditions precedent on his part to be performed, in pleading' must plead performance, and in making proof must prove performance. This contract1 was executory and conditional. Enloe had nothing to do but to deliver up the notes, and this he was not bound to do until Hurst delivered or tendered the negroes. The charge then was predicated on a misconception of the legal effect of the contract of compromise. It was only an agreement to release the deed of trust upon condition to be performed by Hurst, and not a present release.

The judgment must be reversed and the cause remanded.  