
    COCK ASSIGNEE vs. TAYLOR.
    
      Jonesborough
    
    September 1809.
    
    This was an action brought on a bond, given by the defendant to Stephen Bean in the year 1800 containing a covenant to convey, part of a 500 acre tract, with a reference to one of the lines of a tract, which had previously been sold out of the same tract. The quantity, or particular boundaries were not expressed. Plea, covenant performed, non infregit 
      
      conventionem, and Release ; Replications and issues, on the first two pleas.
    Bond given for conveyance of land, in which boundaries &c. are not defined, parol evidence may be introduced to ascertain them. When no time is specified in a bond to make a title, the obligor is bound to make it in a reasonable time. The value of the land at the time of the contract with interest shall be the measure of damages.
    Oyer & demurrer, & joinder in demurrer as to the last. The covenant was assigned by Stephen Bean, to John Bean, in the year 1801; and by John Bean to the plaintiff, in the year 1806. This covenant, was signed by the defendant, and Stephen Bean ; nor is any time, within which the title should be made, expressed in it. In it, there is a covenant, on the part of Bean, in these words " for which land, said Bean, does promise to pay said Taylor, one dollar fifty cents per acre." And on the part of Taylor, it was covenanted, that if the land should be lost by better claims, he was to refund the price received. The Jury having been sworn on the issues.
    On the part of the plaintiff, evidence was given, showing the bounds of the 500 acre tract ; the part that had been sold previous to giving the bond ; and the quality of the part unsold ; which lay in the direction from the line of the part sold, as described in general terms in the bond.
    
      M'Kenney, for defendant,
    offered parol proof, of what was intended by the covenant.
    
      Per curiam. The construction of all instruments of writing, is matter of law for the court ; and not of fact for the Jury. The precise quantity, quality, and bounds of the lands, are left open by the covenant ; parol proof may be adduced to those points ; but not as to the meaning of the covenant so far as it goes.
    
      M'Kenny, then offered the same instrument of writing, which was pleaded as a release in this cause, in the following words, "State of Tennessee Carter County. I John Bean of Grainger county, do hereby acknowledge, that Nathaniel Taylor, has fully complied with an article, that he Taylor entered into with me, as to a tract of land in Grainger County ; it being the place where I now live, &c. which he Taylor sold me, and bound himself, in an article to convey to me &c. which land. I do acknowledge, he Taylor has conveyed to me as he was bound to do ; and the article he Taylor gave me, binding to convey the land, is null and void and I will give it up to him Taylor, or heirs &c. And further, I do acknowledge, that I have no other article or instrument of writing on said Taylor, binding him to convey land, but which is hereby made void. As witness my hand and seal this 21st March 1807."
    Test &c.
    John Bean (Seal)
    It was insisted, that this was evidence of a satisfaction of the covenant, under the plea of covenant performed.
    
      Per Curiam. If this would be proper evidence at all, it cannot be received, under the pleadings made up in this cause. Had accord and satisfaction, been pleaded, it might be another question.
    
      The counsel, then insisted to the Jury, it was necessary for the plaintiff, to prove notice of the assignment, on the defendant ; as charged in the declaration : And that, as no time was mentioned in the articles of agreement, within which the title should be made, the defendant had his whole life to make the conveyance. There could be no evidence, as to the value of the land ; because its limits, were not expressed. It is incumbent on the plaintiff, to support his action, in every respects ; this he has not done.
    The covenant specifies, that if the land be lost by better claims ; the defendant is to refund the price of the land ; which has been proved to be one dollar fifty cents.
    The plaintiff before he can recover, ought to show the payment of the consideration ; and then the obligation would arise, but not before.
    By the court. The construction of this article, cannot now come into question, as the pleadings, are made ; further than is stated in the declaration. If this were designed, the defendant should have craved Oyer ; and set out the covenant, after which, he might have exhibited any defence he thought proper. The declaration does not aver the payment of any consideration on the part of the plaintiff, or those under whom he claims ; nor was it necessary ; as the deed itself, per se, imports a consideration. It only avers, that the defendant bound himself to make a title, which he had not done. The only plea which meets this case, is, covenant performed. The general plea of non enfregit conventionem, if good at all, can only be so to a negative covenant ; but it is doubted whether it be good even in that case. See 2 Lev. 183, 3 Lev. 19, Tidds practice 201, Com. Dig. tit pleader 2. v. 5.
    This is an affirmative covenant, to which the second plea cannot in any event apply. The defendant cannot go beyond the pleadings. The declaration states a breach in not making a title, as the defendant was bound to do. The plea of covenants performed, implies that the defendant had made this title ; and he must prove it ; or show by law, that agreeably to the plaintiff's own showing, he was not bound to do it. This it seems to us, is not one of those cases, in which, the defendant had his whole life to comply with the covenant. The law will imply (under all its circumstances,) it should be performed in a reasonable, or convenient time, of which the Jury are the judges. Further, as to the state of the pleadings; and the objections on the part of the defendant to the plaintiff’s case, for want of proof; it seems to be a general rule, that whatever is not denied in pleading, is virtually admitted. And it is important, that evidence should in all cases, be confined to the issue, to prevent surprise.
    As to the measure of damages, there seems to be some doubt. Cases of this kind for the most part, have been heretofore left to the Jury, who have generally given the value of the land contracted for, at the time of the rendition of the judgment. And per Overton J. It seems to be the better opinion, that the value of the land at the time of the contract, or the time fixed for its performance, with interest ; should be the measure. And the best evidence of such value, is the price paid, when that can be ascertained. This question is however, now before the Federal Court for West Tennessee, from the decision of which, we may expect to derive much light, 
    
    
      Verdict for the plaintiff.
    
    During the same term, on the argument day, the demurrer to the third plea, was argued before Overton J. sitting alone. See the copy of the instrument pleaded as a release in this report.
    
      M'Kenney, Parsons and Kennedy, argued for the defendant, after White for the plaintiff had briefly opened the cause. It was contended on the part of the defendant, that a covenant perpetual, was equivalent to a release ; and might be pleaded as such. Bac. Ab. tit. release A. ib. tit. Pleas and pleadings V. On demurrer, the court must determine on the whole record : and if the court should be of opinion, notwithstanding the plea may be defective, that the plaintiff, by his declaration has not made such a case, as to entitle him to recover ; it must give judgment for the defendant.
    
      White in conclusion. The first question is, whether the paper referred to by the plea, was intended as a release against the article declared on. And secondly, whether the words of it, will warrant such an inference. He took it to be a sound rule, that a covenant never will be construed to embrace more parties, or greater matter than the words will warrant. There is nothing to lead us to suppose, that the instrument declared on, was the one in view by the release.
    
      
      ) The law has been since settled according to this opinion of Overton J.
    
   Overton J.

By no possible rule of construction, can the instrument relied on in the plea, be considered as a release of the one declared on. In the first place, John Bean had assigned to the plantiff, before the release was given. The paper pleaded us a release, refers to an article, that he Taylor entered into with me, meaning John Bean. In the conclusion of the instrument, John Bean who give it, acknowledges that he had no other article or instrument on the defendant Taylor. Can this language fairly be made to release an obligation given to Stephen Bean, which happened to pass through. John Bean’s hands, but was not then in his possession ? By no means. Nor does the latter clause help the defendant ; John Bean might well say, that he had no instrument on the defendant ; for he had not, at that time, any other article, or instrument by assignment or otherwise for aught appears ; on the defendant. Besides this latter clause does not vary the meaning of the first, as to the description of the instrument intended to be released. It is true, as stated by the defendant’s counsel, that though the plea may be defective, yet if it appear from the declaration, that the plantiff is not entitled to recover, there must be judgment, for the defendant ; but the declaration is sufficient, therefore there must be judgment for the plantiff.

Demurrer sustained.  