Clopton v. Bolton, 23 Miss. 78

Clopton v. Bolton

23 Miss. 78 | Miss. | 1851

Mr. Justice Clayton

delivered the opinion of the court.

‘This was an action brought upon two writings obligatory, payable twelve and twenty-four months after date, given for the purchase of a tract of land. The defendant pleaded that fact, and that the plaintiff, at the time of the contract, executed a bond to make title when the purchase-money should be fully paid, and that the plaintiff did not, before the bringing of this suit, tender a deed to the defendant for the land. On this plea the point presented is, whether this action can be sustained because of the failure to tender a deed before the suit brought. In our opinion it constitutes no bar. According to the case of Gibson v. Newman, 1 How. 341, the covenants were separate and distinct. On the one part there were instruments for the payment of the purchase-money at several different periods; on the other, an obligation to make title upon full payment of the purchase-money. Suppose the suit had been brought as soon as the first payment fell due, would it be contended that the plaintiff should make a deed before he could *80recover that instalment, in the face of his obligation to make title when all the money was paid. Clearly not. This shows, beyond doubt, that the covenants were intended to be independent. The case, therefore, does not fall within the principle of Wadlington v. Hill, 10 S. & M. 560. There the suit was brought upon the article of agreement for the sale and purchase of the land. The court held, that the covenants were dependent, and that in such case the party seeking to enforce the contract must allege a performance, or an offer to perform on his part. Here the covenants are independent, and the rule cannot apply.

It is true, that courts think it most just to hold covenants to be dependent. Yet, where the parties have clearly expressed their intention, and made them independent, the courts cannot undertake to control their acts and intention, and hold them to be dependent. In a doubtful case, the court may incline to hold them dependent; but in a case free from doubt, the contract can only be enforced as it is made.

There was not the slightest intention on the part of this court to shake the decision in Gibson v. Newman, 1 How. 341; or of Coleman v. Rowe, 5 How. 160, by the case of Wadlington v. Hill. There is a plain line of demarcation between thefn. In the former cases the covenants were regarded as independent, and in the latter as dependent. On this distinction the cases were respectively decided, and there is no repugnancy or contradiction-between them. They are all now considered by us to be sound law, in the particular circumstances of each of those cases. Where the covenants are dependant, the plaintiff must show a compliance, or an offer to comply with his part; but, where they are independent, no such obligation rests upon him.

The case of Standifer v. Davis, 13 S. & M. 52, has not any direct bearing upon this. There the money had been paid by the vendee. The vendor was bound to make title upon a given day, by his obligation. The questions were, whether the vendee should have prepared a deed, and demanded its execution before bringing suit. The court held that it was the duty of the vendor to prepare the deed, but that when the *81vendee is the plaintiff, it is his duty to make demand before bringing his suit.

In the present case, the judgment below was given for the plaintiff, and the same is hereby affirmed.