
    NASHVILLE:
    JANUARY TERM, 1831.
    Bell vs. Quarles.
    A covenanted to convey to B, one of his lots in the town of N, which B may elect; the conveyance to he made on or before the eighteenth of April 1820. B makes no election until after the eighteenth of April 1S20, and then elects a lot sold by A between the eighteenth of April 1820 and the time of his election. Held, that B had a vested right which was not forfeited by his failure to elect within the time; but that the right of election devolved on A, as if no time had been limited, and the sale of one of the lots by him was an election that B should not have that one; and if A failed to elect in a reasonable time, on request of B, which of the remaining lots he would convey, the right again devolved on B to elect which he would have; or he could bring his action against A, for a breach of his covenant.
    In such case, the value at the time B requested a conveyance of one of the remaining lots, with interest from such request, is the criterion of damages.
    This was an action of covenant, by Quarles against Bell, upon an agreement in the words and figures following, to wit:
    “For value received, 1 promise and oblige myself, my heirs, &c. to make unto William Quarles, of the town of Nashville, his heirs, &c. a good and sufficient deed of ’ ° ^ c , conveynance, containing covenants ot general warranty, to any one of all my lots of ground (except two lots next adjoining the lot on which'John C. M’Lemore now lives) lying in the South Field near said town of Nashville, which he may select or choose, which said lots of ground are designated in the map or plan of said Field, by numbers. Said conveyance shall be made by me or my heirs, on or before the eighteenth day of April next ensuing the date hereof.' Witness my hand and seal, the 18th day of October 1819. M. Bell, (seal.)
    
    “Test, Thomas H. Crutcher.”
    Quarles averred, that on the twenty-second day of November 1826, he made election of Lot No. 13, yet Bell had refused to convey. It was set down on the memorandum docket, thus: “Covenants performed and issue.”
    On the trial, the Lot No. 13 was proved to have been worth $700 on the eighteenth day of April 1820, when Bell was bound to convey, and the other lots were only worth $500 each: That long before 1826, but after April 1820, Bell had sold and conveyed Lot No. 13. The court instructed the jury, that the value of Lot No. 13, with interest from the time of election, should form the estimate of damages. So the jury found. The plea amounted to an informal issue. The cause was tried upon its merits.
    
      F. B. Fogg, for plaintiff in error.
    
      G. S. Yerger, for defendant in error.
   Catron, J.

delivered the opinion of the court.

It is contended by Bell, that Quarles was bound to elect by the eighteenth of April 1820, and if he failed, his right was forfeited. Quarles had a vested interest that could not be forfeited for want of election on the day when Bell was bound to convey. 9 Vin. Ab. Election B. Co. Lit. 145, a: Basset vs. Maynard, Cro. E. 819.

Bell could not comply with his covenant until Quarles elected, before the eighteenth of April 1820. The case of Billingsley vs. Hersey, (reported 9 Vin. Ab. Election C. 12, 362,) lays down the true rule. Quarles failing to elect on or before the eighteenth of April, the right of election devolved on Bell, and he might tender a conveyance for either of the lots. There was a time limited for making the election: Quarles having slept the time, Bell had the right to save his covenant. If there had been no time fixed, then Bell would have been bound to request Quarles to elect, and on refusal, Bell would have had the right. Such is common sense, and undoubted law. Bell having had the right to elect, had the right to sel! the Lot No. 13, which was an election that Quarles should not have that lot. Nor had Quarles any right to elect it after Bell had conveyed it. 9 Vin. Ab. Election B. 5: Palmer’s case, 5 Reports, 25, a. Had Bell refused to elect in a reasonable time after the eighteenth of April, then Quarles might have requested him to elect out of the unsold lots, because the time of election fixed by the covenant having gone by, it stood as if no time had been fixed, and the right of election was in Bell. In such case, the authority in Viner fixes the rule. Bell failing on request, the right again devolved on Quarles. Still this was at the discretion of Quarles, and if Bell did hot tender a conveyance for one of the lots, he broke his covenant, and might be sued and damages recovered; but the damages could not be for the value of the Lot No. 13. The circuit court misdirected the jury. The true damages was the $¡500, with interest from the commencement of this suit. The election of Lot No. 13 was a nugatory act, and cannot be noticed. The reasonable time within which Bell was to convey, was when requested by Quarles. This suit was the first request, or rather the first notice, that the money, and not the lot, was claimed. Under the circumstances of this case, this was the reasonable time at which Bell ought to have conveyed. From such time only, interest by way of damages ought tp be allpWed,

Judgment reversed.  