| Mo. | Jan 15, 1844
delivered the opinion of the Court.
Mitchell, administrator of Thomas, brought an action of debt against the appellant, upon the following agreement: — “Article of Agreement, made and entered into this 20th of November, 1839, between Valentine Thomas of the one part, and John Freeland of the other part, and both of the county of Platte and State of Missouri: The said party of the first part has, on the date aforesaid, bargained and sold to the said party of the second part all his right, interest and claim to one quarter section of public lands, to include where the said Thomas now resides, and bounded as follows, to wit; [here the boundaries are given] and the said Thomas binds himself in the sum of six hundred dollars to give said Freeland possession of the boundary aforesaid, on or before the first day of June next, and also is to give said Freeland privilege to make any improvements he may think proper previous to the time of getting full possession; and the said Freeland binds himself to pay to the said Thomas three hundred dollars, as follows, to wit — one hundred dollars in hand, and one horse beast at its valuation, and the balance on or before the first day of June next. In witness whereof, &c. Signed and sealed by
“ Thomas & Freeland.”
The declaration did not aver any delivery of the possession on the first day of June ; a demurrer was filed and overruled, and the court gave judgment for the plaintiff on the demurrer for the sum of $150 debt, and $28 12lc. damages.
The case is brought here by appeal.
The only question is, whether a delivery of the possession of the land mentioned in the contract sued on is a condition precedent to the recovery of the money.
There can be no doubt but that the covenant of Thomas to give possession on the first day of June, had there been no penalty annexed to it, would have been considered as dependent on the covenant of Freeland to pay the balance of the purchase money at the same date.
The case would have fallen within the principle decided in Cunningham vs. Morrell (10 Johns. Rep., 203), and the cases there cited. But the covenant of Thomas was to give possession on the first day of June, under a penalty of six hundred dollars; and unless this be construed as an independent covenant, it would render the covenant and the penalty entirely nugatory. It is apparent that Freeland relied on this covenant, otherwise he would not have bound him in a penalty.
The case, then, is distinguishable from any of the eases cited by the plaintiff in error in this important particular; and we have not been able to find any reported case in which a covenant, with a penalty annexed, was held to be- dependent.
The averment of the delivery of the possession was, therefore, unnecessary, to enable the executor of Thomas to maintain his action, and the demurrer was rightly overruled.
Judgment affirmed.