
    
      Robert Martin ads. Margery Bobo.
    
    1, On an agreement for the sale of land, the vendee gave his note for the purchase money, payable at the end of twelve months; and took the vendor’s penal bond to make him “a lawful title, or cause it to be made,” within the same period. Held, that the bond and the note being wholly separate and disconnected with each other, the performance on one side was not a condition precedent to performance on the other, unless there had been some express stipulation to that effect.
    2. Where at the time of the sale, the vendor was owner of only one-third of the land, her infant child being entitled to the other two thirds, and there had been an order of the Court of Equity, confirming the sale, and ordering a title to be made for the share of the infant, upon payment of the purchase money — It was held that the purchaser being in possession, and shewing no paramount title in another, was not entitled, in an action upon his note, to set up a discount for the infant’s share, as upon payment of the money he could have that conveyed to him; nor was it material, whether the order of the Court of Equity was made within the twelve months or not; it was sufficient if a good title could then be made. Prnvis ads. Johnson, 1 Hill Rep. 322.
    
      Before Evans, J. Special Court, at Union, September, 1842.
    This was an action on a note given for the purchase money of a tract of land.
    Barham Bobo, Jr. was one of the devisees of Barham Bobo, Sen. Barham Bobo, Jr. being dead, his share of the real estate was allotted to his wife, the plaintiff, and her infant child. The plaintiff sold the land to the defendant, and gave a bond to make titles in twelve months. The action was on a note given for the purchase money. The plaintiff replied by giving in evidence certain proceedings in the Court of Equity, and a decree of that court, confirming the sale and ordering titles to be made when the purchase money was paid. The presiding Judge was of opinion the plaintiff was entitled to recover, and she had a verdict.
    The defendant appealed, on the following grounds:
    1. Because the court decided that the defendant could not avail himself of the want of title in the plaintiff to the land in dispute.
    2. Because the court held that the bond for titles, although forfeited, could not be set up as a defence to the note sued on.
    3. Because the court held that defendant could not avail himself of any part of his defence in the Court of Law.
    4. Because the verdict is contrary to law and evidence.
    Herndon, for the motion,
    contended that the plaintiff must have tendered titles within twelve months; and as to the, distinction between dependent and independent covenants, cited 1 Saunders, 320 b.; 1 Hill, 322.
    Henry, contra,
    cited Rice Rep. 544.
   Curia, per

Evans, J.

The defendant gave his note for the price of the land, payable at the end of twelve months; and took the plaintiff's penal bond, to make him “a lawful title, or cause it to be made,” within the same period. If these stipulations had all been in one instrument, it might be doubtful whether the plaintiff could recover without averring or proving performance, on her part; but where each party has taken his own security for the performance of the other party, there can be no pretence for saying the performance on one side is a condition precedent to the performance on the other, unless there be some express stipulation to that effect. Each party elects his own mode of coercing performance by the other. The plaintiff has taken a note, and the defendant a penal bond, which are wholly independent and disconnected with each other, and each has his action upon his own security for the non performance by the other party.

The defendant contends further, that he is entitled to a deduction of two-thirds of the price of the land, by way of discount, for the share of the plaintiff’s infant child. There can be no doubt, that at the time of the sale, the plaintiff was the owner of only one-third of the land. That she could not then make a title to the whole of the land, could not have been unknown to the defendant, and was probably the reason why a bond was given. The defendant was the son-in-law of Barham Bobo, sen., and one of his executors ; and besides this, the condition of the bond is, that she “shall make him a lawful title, or cause it to be made,” within twelve months. The parties no doubt looked to the Court of Equity as the source from whence the title to the infant’s share was to be derived. Whether the order of the court confirming the sale, and ordering a title to be made for the infant’s share, was within the twelve months, was not stated at the trial; nor do I think it material. It is sufficient if a good title can now be made. Purvis ads Johnson, 1 Hill, 322. The defendant has only to pay the money, and he will be entitled to have the infant’s share conveyed to him. He has already the possession of the land; and there is no paramount title in another, from which he has sustained, or can sustain, any damage, which can be the subject of a discount in this action. The motion is dismissed.

Note. — On the subject of dependent and independent covenants, vide Pordage vs. Cole, 1 Saunders’s Reports, 319, and authorities there referred to.

The eases of Carter vs. Carter, Bordeaux vs. Cave, and Westbrook vs. M'Millan, 1 Baily. pp. 217, 250 and 259, were all actions brought upon promissory notes given for the purchase money of land, and though not bearing a strict analogy to the preceding case, yet involve the question, how far a defectin the title of the vendor may be set up as a defence in an action to recover the purchase money. In the first of these cases above referred to, it is distinctly held, that where the contracts of the parties are mutual and independent, it is not necessary to prove a tender of titles in an action upon the note, and from each of them, that a Court of Law will not, in any case, entertain cognizance of such a defence, unless equal justice can be done to the parties.

In the case of Moore and Nesbit vs. Lanham, 3 Hill, 299, it is held, that “so far as regards the construction of the covenant of warranty of title, there is no difference between real and personal property; and the courts have applied the principle of the civil law, making every covenant of general warranty of title a covenant of seisin. That covenant has always been considered as broken whenever title could be shewn in another; and it has been uniformly held that the Vendee might bring covenant on the warranty, or resist an action for the price, without actual eviction; and this, whether there has been a partial or a total failure of consideration.” Vide, Pringle vs. The Executors of Witten, 1 Bay, 254; Administrators of Bell vs. Administrators of Higgins, 1 Bay, 326; Sumpter vs, Welsh, 2 Bay, 558; Champness vs. Johnson, 2 Brevard, 268; Johns vs. Nixon, 2 Brevard, 472; Furman vs. Elmore, 2 Nott and M'Cord, 189; M'Coy vs. Collins, 1 Nott and M'Cord, 186.

Richardson, O'Neall, Earle, Butler and Wardlaw, XL, concurred.

In Moore and Nesbit vs. Lanham, in reference to the cases of Bordeaux vs. Cave, Carter vs. Carter and Westbrook vs. M'Millan, it is said — “ It is supposed” that these cases “have thrown important restrictions on this rule; and have in fact excluded this sort of defence in all cases where the purchaser remains in possession. But it-will be found on examination, that each of these cases was determined on its particular circumstances. For in Carter vs. Carter, Nott, J., lays down the general rule, “that the seller of' a tract of land cannot recover the consideration money if the purchaser can shew an outstanding paramount title in another. But it must be a subsisting title, such as will deprive the party of the benefit of his purchase. So where the number of acres have fallen short, or a part has been taken off by a paramount title, the defendant has been allowed a deduction pro tanto.” In these cases the purchaser had been long in possession, had paid part of the purchase money, and it was found a Court of Law could not do adequate justice to all the parties. But in Morgan vs. Hext, Fall Term, 1829, suit brought on an obligation given for land, the defence was, that there was an outstanding title. Nott, J. “that will be a good defence if it can be sustained. It presents a simple isolated question of title, which is properly cognizable at law.”

See Scott vs. Woodside (case in Equity) as to damages recoverable on real covenants, where a defective title has been perfected by the purchaser. Carolina Law Journal, 178; and Ward vs. Revil, Ib. 181. R.  