#### J. F. E. HARDY v. WILLIAM F. McKESSON.

Where the vendor and purchaser of a tract of land, entered' into a covenant that the latter should pay a sum certain at a given day, and the seller make title whenever the money was paid, it was Held that the seller, in order to entitle himself to recover the purchase money, was bound to aver his readiness and ability to make title on the day set for payment of the money.

AotioN of debt, tried before BAiusy, J., at the Fall Term, 185S, of Buncombe Superior Court.

Plea, that the covenant declared on, contained mutual and dependent stipulations between the plaintiff and defendant, and the same had not been performed on the part of the plaintiff. The following is the covenant declared on :

“This agreement, made and contracted this 16th day of September, A. I)., 1857, between J. P. E. Hardy, of the county of Buncombe, and State of North Carolina, and W. F. Mc-Kesson, of the county of Burke, and State aforesaid :

WitNessetii, that the said J. F. E. Hardy has sold to the said William F. McKesson, a tract of land in the county of Buncombe, on the north bank of Swannannoa river, including the house and improvements where the said J. F. E. Hardy now lives, and all the land adjoining thereto, owned by the said J. F. E. Hardy, supposed to contain between four and five hundred acres, for the sum of thirteen thousand dollars. And the said W. F. McKesson hereby binds himself, his heirs, executors and administrators, to pay to the said J. F. E. Hardy, his heirs, executors or administrators, on or before the first day of May, next, the said sum of thirteen thousand dollars. And the said J. F. E. Hardy hereby binds himself, his heirs, executors, and administrators, to make to the said "W. F. McKesson, whenever the said sum of thirteen thousand dollars is paid, a good and sufficient title in fee simple, with general warranty, in which the metes and bounds of the said land shall be fully set out.”

There was no controversy as to the execution of the bond, and by consent there was a verdict for the plaintiff, subject to *555the opinion of the Court on the question of law made by the special plea; with leave to set aside the verdict, and enter a nonsuit, in case- his Honor should be of opinion against the plaintiff. But the Court being of opinion with the plaintiff, upon the point reserved, gave judgment according to the verdict, from whieh the defendant appealed.

Merriman, for the plaintiff

If the covenants are mutual and dependent, the plaintiff cannot recover in this suit. But the covenants are not dependent. The payment of the purchase money is a condition precedent to the execution of the deed of conveyance which the plaintiff stipulates to make, whenever the purchase money should be paid. It becomes necessary, therefore, to construe the covenant set out in the pleadings, and the plaintiff insisted that the rule of construction which governs the case, is settled upon principle and precedent. The rule is, that if a day be appointed for the payment of money or part of it, or for doing.any other act, and the day is to happen, or may happen before the thing which is the consideration of the money or other act is to be performed, an action may be brought- for the money, or for not not doing such other act before performance; for it appears that the party relied on his remedy, and did not intend to make the performance a condition precedent. See Eob. Prac. 60 — 61; Leigh’s Nisi Prims 688, and authorities there cited. Apply this rule to our case: Here the defendant stipulates to pay on the 1st of May, 1858, at all events, and the fixing of the day, is a key to ihe intention of both plaintiff and defendant. The ease of Pordage v. Cole, 1 Taun. 320, is in point. There the defendant purchased the lands, &c., of plaintiff, paid five pounds as an earnest at the time of the agreement, and stipulated to pay the purchase money lefore midsummer, 1668: It was held that the payment of the money was a condition precedent, and that the plaintiff might maintain a suit for the purchase money without making or tendering a deed of conveyance. To this effect, is the case of Northrop v. Nor■throp, 6 Con. 296 ; Iiohb v. Montgomery, 20 Johns. 15 ; Wea *556 ver v. OKildress, 3 Stew. 361; Morris v. Sleiter, 1 Denio. 59.

The intention of the parties, to be arrived at from the motive of the transaction, and to be gathered from the instrument itself, also, establishes the position of the plaintiff in this case. It is to be presumed that the defendant is in the possession of the land. Weaver v. Childress, 3 Stew. 361, and taking this in connection with the common practice of the great majority of persons in this State, which is to pay the purchase money before the execution of any deed of conveyance, it would seem that there can be no doubt as to the pro-pier construction to give the instrument in question. The defendant says, that the word “ whenever,” means eo instanti.— It does not mean at the very 'time. The word is a compound word, and ever is a mere expletive, or is added to make the word when emphatic. Webster in defining the word when, gives its various meanings, and the fourth ditinilion ho gives, is, '’•after the time that.” .As, “when the act is passed, the people will be satisfied,” meaning, after the act is passed:— This, in view of the whole case, is the sense in which the word is used in the instrument. Roth plaintiff and defendant signed the covenant, and the defendant has his remedy, and it is apparent that he intends to rely upon it.

J. W. Woodfin, for the defendant.

Pearson, C. J.

This case presents the question: can the plaintiff recover without averring a readiness on his part, to execute title ? This depends upon the construction of the covenant; in regard to which, vre entertain an opinion differing from that of his Honor. Where the covenants are dependent, and the acts are to be done concurrently, readiness on the part of the plaintiff must be averred in the declaration. If the covenants are independent, such averment need not be made.. This rule of law is admitted, and the only difficulty grows out of its application.

In our case, the covenant bound the defendant to pay the sum of $13,000, on or before the first day of May, 1858, *557and the plaintiff to make a good title “ whenever” the money is paid. Row, it seems to us, that, according to the proper construction of this instrument, the defendant had a right to expect that “whenever,” that is, “at any time when” he paid the money, the plaintiff, as a concurrent act, would execute title. Such is the literal meaning of the word “whenever,” and the legal effect of the instrument is this: McKesson is not obliged to pay the money before the first day of May, although he may do so sooner, if he chooses, and call for a title. Hardy cannot require payment until that day; but on, or after, that time, it may be enforced, provided he executes a good title, or is ready and able to do so, “whenever” the money is paid ; and the reason for fixing a day, in respect to the time of payment, was, to give McKesson an opportunity to raise the funds, it being assumed that Hardy would be ready and willing at all times to execute title whenever payment was made.

This construction made, according to the literal meaning of the terms used, is confirmed bj' a consideration of the nature of the transaction : — •

The purpose for which Hardy retained the title was, simply, to secure the payment of the purchase-money. When that was done, there was no longer any reason for holding it, and the intention was that it should be passed, upon, and as, a concurrent act with the payment of the money. It would have been unreasonable to require McKesson to pay $13,000 without getting a title, and a construction which assumes that, he intended to bind himself to do so, and rely upon an action against Hardy to recover damages for a breach of covenant, departs from the ordinary course of things, and shocks our common sense! Had this been the intention, McKesson would have executed a plain note of hand for the money, and taken a penal bond for the title.

It is, as a general rule, most consistent with justice, that the acts should be performed concurrently, so as to dispose of the whole matter at the same time. Hence, Courts of Law incline to the construction by which covenants are made de*558pendent, unless a contrary intention is expressed, as "When the price is to be paid at a specified time, and the title is to be made at another; see Clayton v. Blake, 4 Ired. Rep. 497, where the subject is discussed; and a Court of Equity will never decree a specific performance by the payment of the purchase money, without requiring the execution of a good title as a concurring act. Judgment reversed, and judgment of nonsuit.

PjsR Oubiam, Judgment reversed.