#### WILLIAM W. BRANCH v. JOSEPH J. DANIEL.

Where the owner of a tract of land, uncertain as to quantity, covenanted to make title to the same, upon the covenantee’s paying a certain sum and giving bond and surety for the balance of the purchase-money, at a certain price per acre, it was Held that an action could not be supported upon the Covenant until there was a survey of the premises,

possibly, a demand by the covenantee for a joint survey, and a refusal on the part of the covenantor to concur therein, might have been sufficient without an actual survey.

Action of covenant, tried before Caldwell, J., at the last |Fall Term of Halifax Superior Court.

The plaintiff declared upon the following covenant: “ Know all men by these presents, that I, Joseph J. Daniel, of the county and State aforesaid of the one part, and William W. [Branch, of the county and State aforesaid, of the other part: Witnesseth, that I, the said Joseph J. Daniel, hath, this day, bargained and sold to the said Branch, the whole of my lands on which I live, consisting of the lands I bought of Isaac H. Eaulcon and Joe Williams, lying in the county and State aforesaid, on Mill Swamp and Reedy Branch, supposed to contain between eight and nine hundred acres, at five dollars per acre. I, the said William Branch, promise and agree to pay to the said Joseph J. Daniel five dollars per acre, for the whole of his said land, viz., three thousand dollars, I promise and agree to pay on or before the first day of January next, 1857; the balance to be paid in two equal instalments; one half the balance, January, 1858; the balance and remainder, the first of January, 1859.

“ Either party failing to comply with the above obligation, promise and agree to pay to the other one thousand dollars forfeit damages, to be recovered out of our goods and chattels, &c., on failure to comply.

“ I, the said Daniel, promise and agree to make the said Branch a deed on the payment of three thousand dollars cash, and bonds for the balance, at one, two and three years pay*77ments, satisfactorily executed to the said Daniel. Given under our hands and seals, this the 16th day of August, 1856.” Signed and sealed by the plaintiff and defendant.

The breach alleged was the failure of the defendant to execute a deed according to the terms of the covenant.

It was proved that the plaintiff, with one McDaniel, went to the residence of the defendant ©n the 1st of December, 1856; that before they started, McDaniel, at the instance of the plaintiff, counted of his (plaintiff’s) -money, $3000, which the latter folded up and put into his pocket, requesting the former to go with him and become his surety; that the plaintiff told the defendant, on getting to his house, that he come to pay the $3000 towards the purchase of the land, and McDaniel informed the defendant that he had come, at the request of the plaintiff, to become his surety ; that the defendant replied that he had declined selling his land; that they were in a frolic when the contract was entered into; that he would not take $8000 for it, and he hoped the plaintiff would let him off; that the plaintiff pulled out his money and said, he could pay the $3000 in bank bills, or could get the specie in a few days ; that the defendant replied, he need not trouble himself as to the specie, or surety, as he had declined selling his land.

The defendant insisted that the covenant was vague and uncertain, and that no recovery could be had on it; also that the land ought to have been surveyed, and as the plaintiff had to move in the matter, he ought to have had the land surveyed, or demanded a joint survey.

The Court declined charging the jury as contended by the' defendant, but told them, that if the witnesses were to be be-’ lieved, the plaintiff was entitled to recover. Defendant excepted. Yerdict for the plaintiff. Judgment, and appeal by the defendant.

Coniglcmd and Batchelor, for the plaintiff.

B. F. Moore, for the defendant.

Rearsos, C. J.

The acts to be done by the parties, under-*78this covenant, were concurrent; and to entitle file plaintiff to recover, it was necessary for him to prove: 1st, either a performance on his part: 2nd, or, that he was ready and able, and offered to perform, but the defendant refused to accept, which is considered in law as equivalent to a performance, for the purpose of the action : 3rd, or that readiness and ability, on his part, was dispensed with, because, it was made impossible by the act of the defendant, or was prevented by his request.

These principles have been so recently discussed and decided, that it is unnecessary, at this time, to do more than make an application, to the case now under consideration; Grandy v. Small, 5 Jones’ Rep. 50; Shaw v. Grandy, Ibid. 56; Walker v. Allen, Ibid. 58.

Performance on the part of the plaintiff, is not alleged, but he insists that the case falls under the second head ; for that he was ready and able and offered to perform, and the breach assigned is, that the defendant refused “ to execute the title, at the time, when the $3000 and security were tendered.”

Assuming that the $3000, in bank bills, were the same as specie, and that the surety, who attended at the instance of the plaintiff, was good, still the averment, that the plaintiff was ready and able to perform his part of the covenant, was not true ; and consequently, he was not in a condition to demand a performance on the part of the defendant. There was readiness and ability in respect to the cash payments, but in respect to the security, which was to be given for the balance of the price, the plaintiff was not ready and able, because, the amount, for which the notes were to be given, could not be fixed, until the exact number of acres was ascertained, and it was useless and trifling to talk about executing notes for the balance, at the time when the breach is assigned. If the plaintiff had purposed to make a joint survey, or to make a survey himself, and had been forbidden by the defendant from entering upon the land for that purpose, possibly, the case might have fallen under the third head; but nothing of the kind was *79done, and it is unnecessary to enter upon a consideration of the case in that aspect.

To meet this difficulty, it was suggested by Mr. Batchelor, that he was ready and able, at the time, to have entered into bond, with a condition for the payment of such an amount as might thereafter, upon a survey, be ascertained to be the true amount. It is sufficient to reply, that a bond of this description was not in contemplation of the parties, and would not have conformed to the covenant, by which the defendant was entitled to simple and absolute bonds, for money, in fixed sums, which it is admitted could not, at that time, have been executed. There is error.

Per Curiam, Judgment reversed.