
    Ricks vs. Burlesson.
    Whether covenants are dependent or independent, must be judged of ¡jy the court from their evident sense and meaning.
    If the duties imposed by a subsequent covenant, are so different that it is impossible that the covenantor can comply with the requisitions of the first covenant, they will be construed to be independent, and not dependent covenants, and the latter cannot be considered precedent to the former.
    Tills was an appeal in the nature of a writ of error, from the circuit court of Hardeman county. The record shows, that the defendant in error sued the plaintiff in error in the court below, in an action of covenant broken, and having declared upon the covenant, and set out the breaches, the defendant pleaded a performance of the covenants upon his part; and secondly, that the plaintiff below had not performed his covenant precedent with the defendant, upon which pleas issues were taken. And upon the cause coming on to be tried before a jury, the facts given in evidence to them, were the covenant of the defendant Ricks, with the plaintiff, dated, 26th December, 1827, by which it appears, that Ricks bound himself under seal, to pay to Burlesson the sum of $750, when he, Burlesson, obtained a grant and made a deed to Ricks for an occupant claim of land containing two hundred acres, upon which Burlesson liv.ed at the time, adjoining Wm. Duncan’s and Joseph Rogers’ occupant entry, and a tract of land purchased by Burles-son of Samuel G. Hogan, (the half of grant No. 196.) The plaintiff then introduced a grant from the State of Tennessee, from which it appeared that the land had been granted to the plaintiff according to the calls in the covenant for two hundred acres adjoining the lands referred to; the plaintiff also exhibited a general warranty deed for two hundred acres of land from himself to the defendant, which covered the land specified in the covenant and grant: and proved that he had tendered the same to the defendant. The plaintiff proved also, that the occupant claim, when the contract was made, had been surveyed and marked out by lines; that Burles-son lived upon it when the contract was made; that the grant and deed correspond with the survey; and that at the time the contract was made, the defendant was put into the possession of the land, and has remained in possession ever since. The plaintiff also proved that the land elled round his seventy-five acre entry. The defendant introduced a title bond from the plaintiif to himself, the same set out in his plea, by which it appears that the plaintiff stated that he had upon the day of its date, sold to Isaac Ricks an occupant tract of two hundred acres, designated as follows, to wit: adjoining said Burlesson’s seventy-five acre entry, on the north and east; also, adjoining William Duncan’s occupant entry, on the west; also, Joseph Rogers’ entry on its west, and hound himself to make Ricks a good title to the land mentioned in the title bond. The defendant proved that the land contained in the grant and deed mentioned, did not adjoin the plaintiff’s seventy-five acre entry, on the north and east. The title bond of Burlesson to Ricks was dated the 24th December, 1829. The proof shows that Burlesson had no other occupant claim adjoining the lands referred to, except the one granted of two hundred acres, and that this did not lie north and east of his seventy five acre entry, but that the south side of the two hundred acres adjoined the seventy-five acre entry. The judge charged the jury, that if the land granted to Burlesson, and the deed tendered to Ricks, covered his occupant claim of two hundred acres upon which he lived at the time the contract was made, adjoining Wm. Duncan’s and Joseph Rogers’ occupant entries, and a tract of land purchased by the plaintiff Burlesson, from Samuel G. Hogan, half of grant No. 196, he had complied with his contract, and was entitled to recover the purchase mone7 and interest thereon, although no part of said land so granted to the plaintiff, lay immediately north of the seventy-five acre entry of Burlesson,. spoken of in the plaintiff’s bond to the defendant for title. Upon which the jury found a verdict for the plaintiff; the defendant moved the court for a new trial, which motion the court overruled, and to the opinion of the court overruling said motion for a new trial, the defendant excepted, and prayed an appeal in the nature of a writ of error to this court.
    
      Jl. L. Martin, for the plaintiff in error.
    P. M. Miller, for the defendant in error.
   Catron, Ch. J.

delivered the opinion of the court.

The covenant sued upon, was executed by Ricks, binding himself to pay $750 for two hundred acres of land, Burlesson’s occupant claim, on which he resided, so soon as B. obtained a grant, and made Ricks a deed. The land sold was to adjoin Duncan’s and Rogers’, and a tract of land purchased by Burlesson of Hogan. The grant was obtained. It includes two hundred acres adjoining the land referred to; and it is proved the occupant claim, when the contract was made, had been surveyed and marked out by lines, and that the grant corresponds with the survey. A deed was tendered for the land granted. This was in strict compliance with the condition precedent, on Burlesson’s part, to be performed before he was entitled to the money. ■ This bond bears date the 26th December, 1827.

On the 24th day of December, 1829, Burlesson executed to Ricks a title bond, covenanting so soon as he got a grant, he would make Ricks a title to the land that day sold him, to wit, two hundred acres adjoining said Burlesson’s seventy-five acre entry on the north and east, and Duncan and Rogers on the west.

The first bond of 1827 refers to no land north of „ ™ , , „ . seventy-five acre entry, lhe bond oí 1829 was given in evidence to show a boundary different from that granted, and of course that Burlesson had not complied with the covenant of 1829, and Ricks claims to defeat his action for this reason. The circuit court, in effect instructed the jury to disregard the bond of 1829, as forming no part of the contract of 1827, which, if complied with on Burlesson’s part, he had a right to recover. It is assumed in argument, that the two instruments of 1827, and 1829, are dependent covenants, and in fact but one contract.

Whether covenants are dependent, or independent, must always be judged of by the court, from their evident sense and meaning. 1 Chitty’s Plea. 279, 281.

We think that these are independent. By the contract of 1827, Burlesson was bound to convey different land to authorize him to recover from Ricks, than he was bound to convey by the covenant of 1829.

The duties imposed on Burlesson by the two covenants, are so different that it was impossible he could comply with both by a two hundred acre grant. He could not include the marked occupant lines, which he must do, to comply with the covenant of 1827, and go north of the seventy-five acre entry, in conformity with the covenant of 1829.

The instructions of the court to the jury were correct, and the judgment must be affirmed.

Judgment affirmed.  