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The opinion of the court was delivered by

Mattocks, J.

This was an action of debt, demanding ‡ 1,200 in several counts, declaring on a penal bond, dated August 11, 1822, for $>200,00; also in general counts in debt, for money lent and goods sold and delivered. To these latter counts defendant pleaded nil debit, and the plaintiff joined. To the former the defendant prayed oyer of the condition of the bond, which was, “ that on the payment of the sum of $>100,00, in current money, by the said Loren to the said Stevens, and also on the execution of two promissory notes, by the said Loren to the said Stevens, for $> 105,00 each, one payable in one year and the other in two years from the date, with interest, on the first day of April next, (1833) if the said Stevens shall execute and deliver to the said Loren, on the said first day of April next, after the payment of said sum of $>100, and the execution and delivery of said promissory notes by the said Loren to the said Stevens, a good and valid deed, with the usual covenants, of seizin and warranty,” of certain lands, then the bond to be void, otherwise in force. The defendant then pleaded in bar, that the plaintiff did not, on the first day of April, 1833, pay said $100, nor execute said two promissory notes of $105 each, although thereto requested by defendant; and that he the defendant was ready and willing to have executed a deed according to the condition of the bond, if the plaintiff had performed on his part. To which plea the plaintiff replied, protesting that the defendant did not request the plaintiff to pay the money and execute the notes, and that the defendant was not ready to execute and *33deliver a good and valid deed; that at the time of executing the bond declared upon, the defendant was well seized of the lands in question, and had lawful authority to sell and convey the same; yet afterwards, and before the first of April, 1833, to wit, on the 31st of January, 1833, the defendant sold and conveyed the same lands to one Alfred Hawkins; and the defendant has never since had any right or title to said land, and whereby he had disabled himself from performing the condition of said bond; “ for which reason the said Stone did not, on the said first day of April, 1833, pay to the said Stevens the sum of $ 100, and execute and deliver to the said Stevens the said two promissory notes, but neglected so to do, as he lawfully might, for the cause aforesaidand averring, that the defendant has never executed to the plaintiff any deed of said lands, and so has broken his covenant. To which replication the defendant demurred, and the county court adjudged that the replication was insufficient. On the trial of the issue in fact, under the plea of nil debit, the plaintiff offered to show in evidence, that at the time the bond in the declaration mentioned was executed, the plaintiff paid to the defendant, in personal property and money, about $125, as a part of the price of the lands; and that the remainder of the purchase-money was to be paid at the time and in the manner mentioned in the condition of said bond. The plaintiff offered also to show all the facts set forth in his replication; and this evidence being objected to by the defendant, was rejected by the court, and judgment passed for the defendant; and whether these decisions were correct, are the questions submitted.

As to the sufficiency of the replication, the condition of the bond no doubt requires the money to be paid and the notes given before the plaintiff is entitled to the deed; that is, the defendant is not bound to part with his land until he has his money and his security ; but whether the plaintiff was bound actually to hand over without a deed being given simultaneously, is not now in question, as this part of the case must be decided upon the validity of the plaintiff’s excuse for not performing on his part; for unless this is valid, there is evidently no breach of the condition alleged. The defendant’s counsel contends, that the expression, “ a good and valid deed, with the usual covenants,” relates only to the form of the deed and the manner of its execution, and not to the title of the land; and relies on 1 Saun. 320, and Aiken vs. Sanford, 5 Mass. Rep. 494. There is nothing in Saunders, nor in the notes, to this point. In Aiken vs. Sanford, which was debt on a penal bond, conditional to sell and convey to plaintiff certain lands in a *34reasonable time, after the payment of a certain sum of money, on the defendant’s showing that he had tendered a deed, it was objected that when the deed was offered the land was subject to a mortgage, although it was paid off before action was brought; and the court say, “ that the validity of this objection depends upon the condition which required a conveyance of the land by a good and sufficient deed of warranty. The import of these words is confined to the form of the deed and its execution, and not to the title. If the deed was of a proper form, and regularly executed, and the grantor was seized, so that the land was conveyed by it, the condition in this case was performed.” But they also Observed, that they did not mean to determine, that in no case these words should be considered as applying to the title. If the money was to be paid on receiving the deed, it might be a reasonable construction, that a good and sufficient title should be conveyed; otherwise, the purchaser might part with his money, not merely for the land, but for a lawsuit also. This per curiam opinion seems upon the whole to make for the plaintiff; for here the plaintiff, when he contracted to convey, was seized; but by his own act he had become disseized before the day of performance, and his deed would not have conveyed the land; and the deed, besides, was to have been given the same day, although after the payment of the money, which is not giving credit or time for the deed after the payment.

Among the cases cited by the plaintiff’s counsel is Teat’s case, in Cro. Eliz. p. 7. It consists of twelve lines of black letter, and is worth transcribing, not only because it is pithy and appropos, but to remind the profession that to say all that is needful in few words is among the lost arts. “Debt upon an obligation: the condition of the obligation was, that if the obligor deliver to the plaintiff an obligation, in which he was obliged to the defendant before such a day, then, Szc. The defendant sueth the plaintiff upon that obligation and recovereth, and afterward, and before the day, he delivereth the obligation to him. The question was, if this were a performance of the condition. Wray and the other justices held that it was not. Although the words were performed, yet the intent was not performed; for the intent was, he should have the obligation for his discharge, which' is not by the delivery of it at the day, for it is transferred in rem judicatum; and notwithstanding the delivery of the bond, yet he may have benefit of the judgment.” This was a point blank decision, before circumlocution became professional, that performance to the letter was not performance to the sense. And may the countermarch of mind *35bring posterity back to such unsophisticated decisions and to such clearness in reporting; and then to gain a cause, it will not be cessary to “ carry three camel loads of books before the Praetor.”

Chute vs. Robinson, 2 John. 613, and Judson vs. Wass, 11 John. 525, show that a deed with covenant of warranty means a deed which carries the title with it. In Porter vs. Noyes, 2 Green. 22, it is decided that a contract to make a warrantee deed, free and clear of all incumbrances, is not satisfied, .unless the grantor had the absolute title. In Gastry vs. Perrin, 16 John. 267, it was indeed ruled, that a good and sufficient deed means only a deed to convey what title the grántor had. This last case even would be sufficient for this point in the cause, as the defendant had good title before he conveyed to Hawkins. Indeed it would seem to be trifling with the good sense of the law to hold that a warrantee deed means a deed that the grantor knows conveys nothing; and it would be giving judicial countenance to fraud, to rule that a man may discharge a legal obligation by giving a second deed of land that has already passed to another by the first. This bond, therefore, required a deed that should convey the land.

But it is further objected, that the replication which assigns the breach should have averred a readiness in the plaintiff to pay the money and execute the notes. In 1 Chit. Plead. 317, it is said, “ on averring an excuse of performance by the plaintiff, he must state his readiness to perform the act and the particular circumstances that constitute such excuse.” There can be no doubt that the giving the deed, and the paying the money, and executing the notes, were to be concurrent acts, since the absurdity of some old decisions on this subject was fully exploded in Goodnow vs. Nims, 4 T. Rep. 761, and that a party could not be forced to part with his money without at the same time having his deed; and that, therefore, after defendant had conveyed the land to another, the plaintiff was not bound to make a. tender of the money or notes, upon the same principle that the plaintiff, in an action on a promise to marry on request, when the contract has been violated by the defendant’s having married another, is not bound to aver a request that could not be granted. Yet the forms are, that the plaintiff “ hath always from thence continued sole and unmarried, and hath been for and during all the time aforesaid,'and still is, ready and willing to marry the defendant.”

To. prevent the “ still is ” from being a wanton surplusage, it must be taken with the qualification, if it were morally possible, and thus showing a continuance of the original desire, and that the *36contract was not rescinded by mutual consent. So in the case at # .... 1V bar, the allegation against the defendant is, that he by selling the land deprived himself of the power to perform, which is equal to a refusal; and if the plaintiff was' ready and willing on his part, the bond was forfeit. But if the plaintiff was neither ready nor willing, that is, was not able and did not wish to pay for the land, then it would have been no benefit to the plaintiff for the defendant to have kept it. There was no damage to him by the sale. It is true that in Sir Anthony Manpres’ case, reported in Cro. Eliz. 479, and in Coke’s Abridgement, 138, it was resolved, “ that if a man seized of lands in fee covenant to enfeoff J. S. upon request, and ¿fter, he maketh a feoffment of the same to a strangér, in this case J. S. may have an action of covenant without requestand the same report in Coke even says, “ that when the enfeoffment was to be on a particular day, and he that was to enfeoff passes the land to another, the covenant is broken, although he purchase the land again before the'day and as reported by Croke it is said, that the plaintiff was to make a surrender of his lease, and the defendant to make him a new lease, but the defendant had leased the land to a stranger. “ The defendant being disabled to make a lease, the plaintiff needed not lender the surrender unto him.” But the general principle that is to be gathered from the various authorities s.eems to be, that where the defendant has disabled himself from performing, the plaintiff, whether the condition or the act which he was to perform was precedent or concurrent, need not perform it, as the law requires no man to do a nugatory act; that is, he need not tender a performance, for that is properly an act, and to do it would require some useless trouble or expense ; but to dispense with the averment of being-ready and willing, would, we think, be a departure from all the forms, and not authorized by any authority that has been cited or recollected ; and as it is not discreet to lessen any more than to, enlarge the requirements of good pleading, without strong reasons, which do.not exist in this case, as the merits are not involved in this point, we adjudge the replication to be insufficient.

Upon the common counts, the plaintiff claims to recover-the money and other property paid in advance towards the land, at the time the bond was executed, on the ground that the act of deeding the lands to a stranger, by the defendant, was at the option of the plaintiff a rescinding of the contract. This is objected to because the contract was under seal, and therefore this claim is merged. But for this, it would be among the common cases of recovering *37back the deposit, where the vendor was unable to perfect the title. No authorities have been shown supporting such a distinction, and there seems to be no good reason why the form of the original contract can be of any importance after that contract has been rescinded or abrogated. In Distrass vs. -, 1 Dal. 428, it was decided, that money had and received would lie to recover back the consideration, where there was no such land, as described in defendant’s deed. In Weaver vs. Bently, 1 Cain. R. 47, which was an action of assumpsit to recover back the consideration paid on an agreement under seal, Judge Kent says — “the question will be, whether the defendant having failed to perform on his part, the plaintiff may disaffirm the contract and resort to his assumpsit to recover back what he had paid. We are of opinion, that he had his election either to proceed on the covenant and recover damages for the breach, or to disaffirm the contract and bring assumpsit to recover back what he had paid on a consideration which had failed.” Whether the principle should be extended to the mere failure of performance, may admit of doubt; but in this case, where the defendant has done an unequivocal act of rescinding qn his part, and the plaintiff is content so to regard it, and go only for his advances, that being the most favorable for the defendant, we think that the law as well as justice will permit it.

Judgment of county court, as to the demurrer, affirmed; and as to the issue in fact, reversed.

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