
    Long v. Colston.
    
    June, 1820.
    Covenants — To Make Deed--Performance — Case at Bar. —-Ij. covenanted with C. “to make over 'by deed of bargain and sale, certain lands in England, and thatlj.’s wife should annex such covenants and warranties as would ultimately assure the premises to 0.:" in consideration of which, C. covenanted to convey other lands in the U- ñ. to L. The execution of a deed of bargain and sale by L. and wife, with her privy examination and relinquishment of dower in Virginia, is such a performance by L¡.. as entitles him to an action against C., for refusing to convey the lands in the II. S.
    C. having bound himself to pay $20,000 in money and lands, for the lands in England, will be entitled to relief for any deficiency in their value, short of that sum.
    This is a declaration in covenant, containing two counts. The 1st sets forth, that Long and Colston on the 8th July 1797, entered into a covenant which recited, that Chilcott Symmes of G. Britain, on the 24th June 1742, devised certain lands, &c., to Richard Chichester in fee; that Richard Chichester devised them to his son John; that John Chichester died under age, leaving a daughter, (Mary) his only child, who married Burgess Ball: and died, leaving two children, a son named Burgess, and a daughter called Elizabeth. Burgess Ball the younger, heir to Mary Ball, ’died in 1790, under age, and without issue; whereby the lands in Dorset and Devonshire in England, (which were the subject of the contract between Long and Colston) became vested in Elizabeth B. Ball, at the death of her father, who was tenant by the courtesy. Elizabeth B. Ball married Armistead 'Long the plaintiff. The lands had been sold, and the proceeds vested in English funds, by act of Parliament. The covenant witnessed, that Long and wife, should on or before the 31st July 1797, make over, by deed of bargain and sale to Col-ston, all the lands, tenements, &c. aforesaid in Devonshire, Dorset and the town of Exeter, or the proceeds thereof, vested in the English funds; and that Long and wife should annex all such covenants and warranties, as would ultimately assure the premises to the said Colston. Colston in consideration of this covenant on the part of Long, bound himself to pay the sum of 820,000 upon the execution of the conveyance aforesaid, payable in 85000 cash, and $15,000 in Kentucky lands, and other lands in the north western territory, to be selected from a schedule at the price of S2 per acre: for which Colston Was to make all necessary conveyances. The declaration then averred, that Long and wife executed and delivered to Colston, on the 8th July 1797, an indenture of bargain and sale, by which deed, and the privy examination of the wife in Culpeper, she released her dower; and both Long and wife made over by deed of bargain and sale, &c., the lands in - Dorset, Devonshire and Exeter, or the proceeds in the English funds to Colston and his heirs, according to the true intent of the covenant: and that the wife did annex all such covenants and warranties as would ultimately assure the premises, &c. The declaration farther averred, that after the execution of this indenture, Long had selected from the schedule of lands, a certain number of acres (of which the defendant had notice,) and demanded a conveyance of them from Colston; which Colston refused to make, and so had broken his covenant.
    The 2d count contained the same recital, with an averment, that Long did execute to Colston, the-deed of bargain and sale, transfer and assignment, with the covenants and warranties mentioned, (omitting the privy examination) according to the true intent and meaning *of the covenant; and demanded the conveyance of the western lands by Colston, which he had refused, and so had broken his covenant, to the plaintiff’s damage, &c.
    The defendant craved oyer of the covenant and deed; and to the first count of the declaration filed eleven several special-pleas, which in substance were: That the defendant had performed his covenants, and protesting that the plaintiff had not performed his, and that all the interest of Elizabeth Long in the lands, &c., did not pass by the deed of bargain and sale, averred, that at the time of executing the original conveyance, part of the property mentioned in the covenant was real estate lying in England, vested in Mrs. Long a feme covert, which could be conveyed, only by a fine levied by Mrs. Long; or by a privy examination before the Lord Chancellor, or some other Judge. That part of the land which was the subject of the contract, had by act of Parliament been sold for the payment of legacies, &c., and the surplus, had by the same act, been ordered to be reinvested in lands. Which money thus ordered to be converted into land, was also assignable only by special methods, appointed by the laws of England. That a privy examination in England was necessary to pass Mrs. Eong’s title. That being a married woman at the time of executing the covenant, she was by the law of England incapable of making a contract, and the covenant and warranty were as to her and her heirs void; therefore Eong had not performed his covenant, which was precedent to the defendants. And lastly, that the defendant executed his bond (with Henry Eee as surety) to the . defendant, which he had accepted; to which bond there is a condition annexed, stipulating, that for the entire value of the said lands in sterling money, the defendant should pay to the plaintiff, only one pound current money, for each pound sterling; and the defendant averred, that the value of the lands, &c. in sterling money, was less than 21001. current money of Virginia. *And farther the defendant averred, that before the demand by the plaintiff, he had paid him 15001. current money; and conveyed to him 1000 acres of land contained in the schedule, at $2 per acre, amounting to 6001. on account of the said contract; which exceeded the value of the lands covenanted to be conveyed by Eong, and so had performed his covenant.
    There were eleven special pleas to the second count, which (except the 10th) were the same in substance with those to the first count.
    The 10th plea to the second count, averred in addition to that filed to the first count, that the value of the lands, &c. in England, had been ascertained by decrees in Chancery, and was less than 21001. which had been paid to Eong; and therefore the defendant had performed his covenant.
    The plaintiff protesting, that he had performed his covenant, and that all Mrs. Eong’s right passed by the deed; replied to the 1st plea, that the defendant had not performed his covenant, and concluded to the country. To all the other pleas the plaintiff demurred, and craved oyer of the bond mentioned in the tenth plea.
    The defendant joined in the issue of fact tendered to the first plea, and joined in the demurrers.
    To the pleas to the second count, the plaintiff after protesting that he had performed his covenants, and that the estate of himself and wife in the English lands, &c., did pass by the indenture and privy examination; that he had done every thing required of him by the covenant, to entitle him to recover; that there was no final decree of the Chancery of England, ascertaining the value of the English estate in sterling money, according to the covenant; and concluded to the country. To the general replications, that the plaintiff Had performed his covenants, and that the defendant had not, the defendant joined the issue tendered.
    *To the several applications of the plaintiff, that the propertj' in England did pass to Colston by the conveyance mentioned in the second count; that there had been no final decree in the English Chancery ascertaining the sterling value of the English estate; according to the true meaning of the covenant, the defendant demurred.
    The questions of law arising on the demurrers to the first count, were adjudged for the plaintiff: and those on the demurrers to the plaintiff’s replications to the defendant’s pleas to the second count, were adjudged for the defendant, the court being of opinion the second count was bad.
    The defendant then moved the court, to admit him to plead other pleas; the motion ,was continued to the next term; when the court allowed the defendant to plead, that Eong and wife did not on the 8th July 1797 or at any time before 31st July 1797, make over by deed of bargain and sale, transfer and assignment, all the lands and tenements aforesaid,- or the proceeds thereof, vested in the funds of England; and that they did not by deed as aforesaid, bargain and sell, transfer and assign, all their right and interest in the premises, to the defendant and his heirs, against the claims of them the said Eong and wife, and their heirs, with such covenants and warranties annexed, as would ultimately assure the premises to the defendant, &c., but failed so to do, contrary to the tenor of the covenant, &c.
    The plaintiff replied, that he and his wife did on the 8th July 1797 execute a deed of bargain and sale: and that on the 17th July 1797, Elizabeth Long, by her privy examination, &c., in Culpeper, relinquished her dower in the premises; which deed and privy examinations, as set forth in the declaration, were a deed of transfer and assignment, within the meaning of the covenant, and a performance by the plaintiff; he concluded to the country, and the defendant joined.
    *The Jury found. a verdict for the defendant, who had judgment. But the plaintiff filed two bills of exceptions in the progress of the cause.
    The first - stated, that the plaintiff gave in evidence the original covenant in the declaration mentioned; the copy of the indenture of the bargain and sale by Eong and wife; the certificate of the acknowledgment in court of the execution of the said indenture by the plaintiff; and of the privy examination of Mrs. Long to the deed; together with her acknowledgment of its execution in court; and the deliver by both of them, prior to the 31st July 1797. The plaintiff also gave in evidence the bond by Colston and his surety, Eee; a power of attorney from himself and wife to the defendant; with a certificate of her privy examination to it, executed before 31st July 1797. All of which writings, were spread upon the record. And then the plaintiff moved the court to instruct the jury, that according to the true construction of the covenant, the execution and delivery of the deed of bargain and sale, with the warranty, and privy examination, and the acceptance of the deed, by the defendant, was a performance of the condition on the part of the' plaintiff, which entitled him to recover; oil proving a selection of the lands in the schedule, and a refusal on the part of the defendant to convey. The court refused the instruction, and the plaintiff excepted.
    The second bill of exceptions stated, that the defendant having offered certain depositions, to prove that the wife of Burgess Ball the elder, died in 1775 during the life of her husband, leaving two children, Burgess Ball jun. and Elizabeth the plaintiff’s wite; that Burgess Ball the son died in 1793, and his father died in 1801. That Elizabeth the plaintiff’s wife, died in 1806. Whereupon the plaintiff moved the court, to instruct the Jury, that the deed of bargain and sale, with the privy examination, passed to the defendant such an estate in the premises, or in some part of them, as entitled the plaintiff *to his action, upon proving a demand of a conveyance of the western lands, and a refusal by the defendant to convey which were admitted. The court refused this instruction also, and the plaintiff excepted.
    The plaintiff appealed from the judgment of the General court, where this cause -was tried by consent of parties.
    It was argued in the court of appeals by Tazewell and Wickham for the appellee; and by Jones (of Washington) and Stanard for the appellant.
    The Reporter regrets extremely, that no reporter was appointed at the time of the argument, and consequently he cannot give to the profession even a sketch of the profound and comprehensive views taken of the cause by either counsel.
    
      
      Tbe principal case was cited in Tunstall v. Pollard, 11 Leigh 28.
    
   By the court.

The court is of opinion, that upon the true construction of the covenant upon which this suit is brought, the appellant was entitled, on the facts set forth in the bill of exceptions, to this action against the appellee; and that his recovery in this action cannot, in any manner be affected by a regard to what may be the value of the estates in England, the appellee being bound immediately on the execution of the deed, as contemplated in the covenant, to pay the $5000 in cash, and $15,000 in lands at the price of $2 per acre, as stipulated in the covenant, whatever may be the real value of the estates in England. As to the objection on the part of the appellee, that this action did not lie until the title to the English estate was conveyed by means of fine and recovery, according to what is alleged to be requisite by the laws of England to pass the estates aforesaid: that objection is equally repro-bated by the terms of the covenant itself; by the cotemporaneous exposition of the parties in relation thereto; and by the delay of the appellee for so great a length of time, to take the objection aforesaid.

*But while the court is of opinion that the recovery of the appellant in this action, is not to be delayed for the final adjustment of the estates in England, and that the amount of the recovery in this action, cannot be at all affected by what may be the value of the said estates, yet the court for the satisfaction of the parties, expresses its opinion to be, that if it shall appear on the final adjustment of the said estates, that the value thereof is less than $20,000, the appellee will be entitled to relief for such deficiency ; the court being of opinion that the $20,000 aforesaid was only intended as an advance, subject to. the final adjustment of the value of the said estates, and not as a gross sum intended to be given therefor.

The judgment of the General court is therefore to be reversed, and the cause to be remanded for a new trial, on which the instructions formerly refused, are to be given if required. _ 
      
      Bbooke absent.
     