
    James B. Feemster vs. Joseph May.
    A vendee who is in possession of land under a bond for title, but who has not accepted from his vendor a deed with covenants of warranty, can, without eviction, set up a failure of consideration from defect of title in defence of an action by the vendor for the purchase-money: aliter, if he has accepted such deed.
    Where a bond for title, oh payment of the purchase-money, is given, the covenants are dependent, and the vendee cannot be forced to part with his money until the vendor be ready to make title.
    A covenant to make “ a good and perfect deed” is not complied with by making a deed good in form only; the title must be good, to satisfy the undertaking.
    
      In error from the circuit court of Noxubee county; Hon. Armstead B. Darvson, judge.
    This was an action of assumpsit, founded on a promissory note, the consideration of which was part of the purchase-money of a certain tract of land sold by Joseph May to James B. Feemster. The defence to the note was a failure of consideration, to prove which the appellant introduced a bond given him by the appellee, conditioned that, as soon as the notes should be fully paid, (there were two notes, one of which had been paid before the institution of this suit in the court below,) he would make the appellant a good, clear, and sufficient title to the land; and also introduced proof to show that the plaintiff did not have a good title to the land. The court was then asked to instruct the jury that, to enable the plaintiff to recover, he must be able to make-the defendant a good, clear, and sufficient title to the land in the title-bond mentioned. This instruction the court below refused to give, and that refusal is now assigned as error.
    
      A. W. Dabney, for the plaintiff in error.
    A want of title in May, and, as a consequence of this want of title, his inability to comply with the stipulations of his bond to Feemster, was established. Was he, then, entitled to the purchase-money ? He was not. The covenants in this bond are dependent, and May’s right to enforce payment of the note depended upon his ability to make Feemster a good title. In the case of Peques v. Mosby, 7 S. & M. 340, there was a bond, conditioned to make title, when the last note given for the purchase-money should be paid. The title in that case was not to be made until the money was paid, and yet the court decided that the covenants were dependent, and that the plaintiff had no right to enforce payment of the note, if it was clear that he could not make the defendant a good title. The condition of the bond in that case is similar to the condition of the bond in the case at bar. They are substantially the same.
    The fact that the plaintiff in error was still in possession of the land, did not authorize the circuit court to exclude the defence. Eviction was not necessary, as there was a total failure of the consideration.
    
      
      Guión and Baine, for defendant in error.
    The defendant below is in possession of the land sold, and has been in its undisturbed possession since he bought it. The vendor has given a title-bond to the plaintiff in error to make him a title when the money shall be paid. Granting that the title of the defendant in error is defective, can any one undertake to say that he cannot, perfect it by the time the vendee gets ready to pay the money % And if he could not, the vendee cannot keep the land and the money too. If he chooses to abandon the contract, and can compel a rescission of it, he must place his vendor where he found him. Glascock v. Horton, January Term, (October silting,) 1849, [ante, 85]; Heath v. Newman, 11 S. & M. 201; Harris v. Bolton, 7 How. 167.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a suit upon the last of a series of notes, given for the purchase-money upon the purchase of a tract of land. The vendor gave bond to make title upon payment of the purchase-money, and put the vendee in possession. Upon the trial, the defendant introduced proof to show that the plaintiff had not a valid title to the land. He asked the court to instruct the jury, “ that to entitle the plaintiff to recover, he must be able to make the defendant a good, clear, and sufficient title to the land 'in the title-bond mentioned.” This charge was refused.

It is certainly true, as argued by the counsel of the defendant in error, that a vendee who has been put in possession of land, and who has accepted a deed with covenants of general warranty of title, cannot defend a suit brought for the purchase-money, upon the ground of failure of consideration from defect of title, until he is actually evicted. Heath v. Newman, 11 S. & M. 201; Dennis v. Heath, Ib. 206. But this rule does not apply where no deed has been executed, but only a bond given for title. In the latter case, the covenants are dependent, and the party cannot be forced to part with his money until the vendor is ready to make title.

We have decided, that it is not a compliance with a covenant to make “a good and perfect deed,” to make a deed good in form only. The title must be good to satisfy the undertaking. Greenwood v. Ligon, 10 S. & M. 615. If the vendee in this ease were to pay the purchase-money and sue on the title-bond, the vendor must show his title to be good, before he could be adjudged to have complied with his covenant. There is no reason why this should not be required in the present suit, so as to save the necessity of further litigation, and to guard the vendee against loss.

Where the vendee has accepted a deed, it is with an agreement, express or implied, that he will rely upon the covenants it contains; and he cannot resort to those covenants until there has been a breach.

For the error in refusing to give the instruction asked,, the judgment will be reversed, and new trial awarded.  