
    Joseph Manigault vs. Bartholomew Carroll.
    Upon a covenant for the lease of a lot, whereon lessee covenanted to build, which buildings, at the expiration of the lease were lo be va» lued by indifferent persons, and at which valuation the lessor was to tate the buildings, he paying for the same in one, two, and three years from the expiration of the time; the Court Held, that the payment for the houses, was not a covenant precedent to the delivery of them.
    TTfliS was an action of covenant to recover certain rent and damages, for having detained the premises after the expiration of the lease, and was tried before his honor Judge Huger, Charleston, July, 1820.
    The plaintiff, by indenture between him and the defendant, entered into on the 3d of November, 1796, leased to the defendant four lots of land in Boundary-street, for the term of ten years, at £ 15 per annum, payable quarterly.
    In this lease, (among others,) there are .the two following covenants-; “ and the said Joseph Manigault, for himself, his executors, administrators and assigns, doth covenant and agree to and with the said Bartholomew Carroll, bis executors, administrators, or assigns, that he, the said 
      Bartholomew, Carroll, his executors, administrators or assigns, shall and will, at their own proper costs and chaiges irx 'all things, make, erect, set up, and finish, one or more substantial buildings of timber, brick, clay, mortar or stone, upon each of the three lots, number 49, 50, and 51, hereinbefore mentioned to be demised ; and it is covenanted and agreed upon by the parties .to these presents, that at ihe expiration of the said term, the building or buildings that may have beep erected, and are then remaining on the said lots of land, shall be valued by two indifferent persons, one chosen by the said Joseph Manigault. his exec utors, administrators or assigns, and the other by Bartholomew Carroll, his executors, administrators or assigns ; and in case those persons chosen cannot agree in fixing the value of the building or buildings, then a third person shall be chosen by these two persons, who shall fix the value of the building or buildings, which shall be taken by tlie said Joseph Manigault, his executors, administrators or assigns, he or'they paying for the same in one, two, or three years from the expiration of the term. And lastly, that the said Bartholomew Carroll, his executors, administrators or assigns, shall and will, at the expiration of the said term, deliver and give t\ie said Joseph Manigault, his executors, administrators or assigns, peaceable and quiet possession of the said four kits of land and premises.1’
    The defendant pleaded,
    1st. That there was no rent in arrear. On which, issue was takenand,
    2ndly. In substance, that the plaintiff had not fulfilled the first mentioned covenant, which he insisted was a condition precedent to delivering up the lots; and pverred performance of all his, the defendant’s, covenants and engagements.
    To this plea the plaintiff, after protesting that he, the plaintiff, had performed all his covenants, but that the de-fendánt had failed on his part, demurred, and the defendant joined in demurrer.
    The demurrer was sustained.
    
      And the defendant now appealed from that decision, on ¿he ground, that the said condition in the lease as set forth in the plea was in fact a condition precedent, and that therefore the same was a good and sufficient plea in bar to the action .of the lessor.
   Mr. Justice Gantt

delivered the opinion of the Court.,

This case presents but one single point for the consideration of the Court, i. e. the nature of the covenants before recited.

Are the conditions which the defendant is .obliged to perform, dependant upon some act which must previously be fulfilled on the part of the plaintiff? '■

Lord Mansfield, in the case of Jones vs. Barkley, (see Douglas, 690, 691,) says, “the dependence or independence of covenants was to be collected from the evident sense apd meaning of the parties, and that however transposed they might be in the' deed, their precedency must depend on the order of time, in whiclnhe intent of the transaction requires their performance.”

What is then the evident sense and intention of the parties to this agreement ? Obviously this; th'at the defendant should restore the possession of the premises to the plaintiff immediately on the expiration of the lease ; and that bis doing so, was not to depend upon a previous act to be performed by the plaintiff. The valuation of the lots wa& not to take place till the lease expired. The act of fixing & value upon the houses in the mode and manner pointed out', in the agreement, would necessarily require time to be effected 1 for in case of disagreement on the part of those who were to be mutually chosen by the parties concerned in interest, a third person was to be appointed to fix the value. is it possible' to conceive that the contracting par f ties had it in contemplation, from any thing to be collected from the covenants, that this adjustment of value was to be made at the precise point of time that the defendant had bound himself to surrender up the possession of the premises to the plaintiff? The design of fixing a value upon the bouses would have answered the views of the parties as well if done in a few days or few weeks after the surrender, as at the time of it; seeing that the defendant was to be paid this value by instalments, and that the first payment was not to be-made sooner than a year from the expiration of the lease. It would therefore be doing violence to every rule of construction, to say that the fixing a value upon the buildings is to be considered in the light of a condition precedent to the plaintifF’s getting possession of the. lots. Fixing the value upon the houses was not an act which the plaintiff was authorized to have done alone ; the defendant himself was as much to be concerned in it as the plaintiff; either or both might have been in default; but neither was bound by the contract to perform his part of it, till after the period fixed on for delivering back the possession to the plaintiff. Besides, the consideration which the defendant was to receive for a performance of the stipulations imposed upon him, was not the ascertainment of the value of the' houses, but the payment of that value in one, two, and three years; and he had provided lor himself an adequate remedy in the plaintiff’s covenant for the attainment of both objects. On this we must suppose the defendant placed his reliance for indemnity. This was the construction which the presiding Judge put upon the agreement in his decision of the question upon the demurrer, and the Court are satisfied that the view taken by him was strictly correct and legal. The motion in this case must, therefore, fail.

Justices Colcack, Nott and Huger, concurred.  