
    *Spindle’s Administratrix v. Miller’s Executors.
    Decided, March 10th, 1818.
    s. Agreement for Saüe of Land — Purchase Money Need Not Be Paid Until Conveyance Tendered. — An agreement for the sale of land being, that the Vendor shall make and execute deeds of Conveyance, and the vendee shall pay, on the day of the execution of the said deeds, part of the purchase money, and give bonds for the balance, as soon as the quantity, (supposed to be a certain number of acres,) can be ascertained by an .accurate survey; the vendee is not bound to make the said payment, nor give bonds for the balance, until the vendor shall first have made or tendered the Conveyance; notwithstanding a survey ascertaining the quantity of the land has been made.
    s. Same — Paiiure of Vendor to Tender Conveyance ins His Lifetime — Right of Vendee. — If the terms of the agreement be, that the vendor binds himself to make the conveyance, and the vendee binds himself and his heirs to make the payment, &c., on • the day of the execution of the conveyance; and no conveyance be made or tendered by the Vendor in his lifetime; the vendee is not bound to accept a Conveyance from his heirs, but may waive the contract altogether.
    In an action for breach of Covenant, brought by the appellees against Eewis Spindle, the declaration contained two Counts; each stating certain articles of agreement under seal, made the 5th of February, 1807, between James Miller (testator of the plaintiffs,) and the defendant, by which the said Miller bound himself to make and execute deeds of conveyance for a certain tract of land which he had sold to the said Spindle, on the following terms; “viz, that the said Eewis Spindle bound' himself and his heirs to pay to the said James Miller, on the day of the execution of the deeds of conveyance for the said land, the sum of six hundred pounds, and to give his own (the said Lewis’s) bond, or other bonds, approved of, and assigned by him, for the balance, whatsoever it might be, as soon as the quantity could be ascertained by an accurate survey of the same, which was supposed or estimated to contain about six hundred acres, at the rate of forty shillings per acre, the price agreed on by the said parties.”
    In the first Count it was said in substance, that, by an accurate survey of the land aforesaid made on the day of in the year , the quantity of the same was ascertained to be 651 acres; of which the defendant then and there had notice; that, on the day of in the year at the County aforesaid, he the said testator of the plaintiffs did well and truly execute unto the said defendant a deed of bargain and sale of, and did well and truly convey to him the said Eewis all and singular the premises sold “by him the *said plaintiffs” to the said defendant, or agreed to be sold “by the said plaintiffs” to the said defendant; and that he did in all things perform the covenants and agreements which in and by the said articles he was bound to perform on his part &c.; but the defendant had broken the same, in this, that he did not pay to the said testator of the plaintiffs on the day of the execution of the deed of conveyance for the said land, the said sum of six hundred pounds, nor at any time give his own bond &c. for the balance of the purchase money; &c.
    
      The second Count stated, that the said James Miller in his lifetime, viz, on the day of in the year , caused to be made an accurate survey of the said land, whereby the quantity was ascertained to be acres, of which the defendant then and there had notice; that the said James Miller having departed this life before the execution of Deeds of Conveyance of the same to the said Lewis: Spindle, leaving Elizabeth his widow, and his children William Miller and others, (named,) his heirs at law; they the said Elizabeth, William, &c., in pursuance of the said articles, caused to be prepared good and valid Deeds of Conveyance of the premises in the agreement mentioned, and on the day of at the County aforesaid, duly executed the said deeds, and then and there tendered the same unto him the said Lewis Spindle, and then and there required him to pay to the said plaintiffs the said sum of 6001., and to give his own bond &c. for the balance; yet the defendant &c. ; charging the breach on his part, in like manner as in the first Count, and that he refused to accept the deeds so tendered.
    The defendant pleaded, “Covenants not broken;” after which he died, and the suit was revived by scire facias against his administratrix.
    A trial was had on the issue joined, and verdict found for the plaintiff for 13021. damages, “that being the principal sum due, with interest thereon from the 24th day of September 1808, until paid;” which verdict was modified by consent of parties, so as to read as follows: — “We of the Jury find for the plaintiffs 7021. "'damages, that being the principal sum due with interest thereon from the 24th day of September 1808, upon the first Count of the declaration, if the Court shall be of opinion that Lewis Spindle, under the contract in the declaration mentioned, was bound to give his own bond, or other bonds approved of, and assigned by him, to James Miller for the balance of the purchase money, after deducting 6001. part thereof, upon the ascertaining the quantity of land, mentioned in the contract, by an accurate survey of the same, of which the said Spindle had notice, but disapproved, without any conveyance for the said land ever having been made or tendered by the said Miller to the said Spindle. And on the second Count, we find for the plaintiffs 13021. damages, that being- the principal sum due; and that Interest is to commence thereon from the 24th daj' of September 1808.” And the parties agreed, that, if the Court should be of opinion that the action was sustainable under the second Count, judgment should be entered thereon for the plaintiffs according to the finding of the Jury; (saving to the defendant the benefit of certain exceptions Sled in the cause, in as full and ample a manner as if the foregoing modification of the verdict and agreement had not been made;) and judgment in that case be entered, on the first Count, for the defendant: — but if the Court should be of opinion that the plaintiff’s action was not sustainable on the second Count, then judgment should be entered on the first Count, for the plaintiffs, or defendant, according to the opinion of the Court upon the above modified finding.
    The Circuit Court was of opinion that the law was for the defendant on the first Count, and for the plaintiffs on the second Count. Judgment was therefore entered for 13021. with interest thereon from the 24th day of September 1808 ’till paid, and Costs: Erom which judgment the defendant appealed.
    Stanard for the appellant.
    Green for the appellee.
    
      
       Note. So in the transcript of the record.— Note in Original Edition.
    
   JUDGE ROANE

pronounced the following opinion of this Court.

"The Court is of opinion that, upon the true construction of the agreement, as stated in the declaration, the testator of the appellees was bound to make or tender a conveyance for the land sold, Whereupon he would be entitled to receive and recover the 6001. stipulated as the first payment therefor; and that, upon his also ascertaining the quantity of the land by a survey, he would have been farther entitled to the bonds stipulated to be given or assigned for the balance: but, it being found by the verdict, as modified by the consent of parties, that no such deed was ever made or tendered, the Court is of opinion that that balance is not due or recoverable, under the agreement, although a survey ascertaining the same has been made; and that the judgment of the Superior Court, upon the first Count, for the appellant, is correct.

The Court is further of opinion, that the said agreement provides, that the said conveyance should be made by the said testator himself, and not by his heirs; a restriction the appellant may have good reasons to insist on, and had, therefore, a right to insert in the contract; and that this construction is not varied by the circumstance that the penal part of the agreement extends to such heirs: — and the second Count in the declaration having admitted that no such conveyance was made or tendered, by the said testator, the Court is of opinion that the same makes no case whereon the appellees are entitled to recover, although it is stated therein, that Conveyances were made and tendered, for the premises, by the widow and heirs of the said testator.

The judgment of the Superior Court, on this Count, is therefore to be reversed, and entered for the appellant.  