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

A covenant to make a good and sufficient title in fee simple to a tract of land in which the metes and boundaries of the said land shall be fully and fairly set out, is not complied with, on the part of the vendor by the tender of a deed describing a large tract, by metes and bounds, and excepting five small parcels which are not described, except by the number of acres contained, and the names of the owners.

Upon a covenant in general terms, that the vendor shall make a good and sufficient title in fee simple at a given day, when the vendor is to pay the purchase-money, it was Meld to be the duty of the vendor to prepare the deed and have it ready, when he demands the purchase-money.

AotioN of coteNANt, tried before Bailey, J., at a Special Term, (July, I860,) of Buncombe Superior Court.

The plaintiff declared on the following covenant, viz:

“This agreement made and entered into this 16th day of September, A. D. 1857, between J. E. E. Hardy of the county of Buncombe, and State of North Carolina, and "William E. McKesson, of the county of Burke, and State aforesaid, witnessed, that the said J. F. E. Hardy has sold to the said W. E. McKesson, a tract of land in the county of Buncombe, on the north bank of Swannanoa river, including the house and improvements, where the said James E. E. Hardy now lives, and all the land adjoining thereto owned by the said J. E. E. Hardy, supposed to contain between four and five hundred acres, for the sum of thirteen thousand dollars, and that the said W. E. McKesson hereby binds himself, his heirs, executors and-administrators, to pay to the said J. E. E. Hardy, his heirs, executors and administrators, on or before the first day of May next, the said sum of thirteen thousand dollars, *568and the said J. E. E. ITardj hereby binds himself, his heirs, executors and administrators, to make to the said W. E. Mc-Kesson, whenever the said sum of $13,000 is paid, a good and sufficient title in fee simple, with general warranty, in which the metes and boundaries of the said land shall be fully and fairly set out.” Signed and sealed by both parties.

In an action brought on this covenant, it was decided by this Court, (6 Jones’ Hep. 554,) that these covenants were dependant, and in order to entitle himself to recover the purchase-money, it was necessary for the plaintiff to-aver and prove that he was ready and able to perform his part of the covenant. On the part of the plaintiff, in the Court below, on the trial of this action, it was proved that on the 22d of October, 1859, previously to the commencement of this suit, the plaintiff caused to be prepared and tendered to the defendant, a deed purporting to convey to the said "William E. Mc-Kesson, and his heirs, &c., “ all that tract, piece and parcel of land, situate, lying and being in the county of Buncombe, on the north bank of Swannanoa river, including the house and improvements where the said James E. E. Hardy formerly lived, supposed to contain between four and five hundred acres, and which said tract begins at a stooping locust, on the south bank of the river, and runs north, &c.,” (setting out in the same way the external boundaries of the said tract,) “ containing, according to the title deeds of the said J. E. E. Hardy, 520 acres, and according to the actual measurement, 448 acres, more or less. Erom said tract of land, the said J. E. E. Hardy excepts twenty acres sold to Dr. John Dickson, now owned by Mr. Wallace; ten acres sold by Dr. Samuel Dickson to Lindsey, and owned by Marcus Erwin; twenty acres sold to Mrs. Trescott, now owned by Mr. Oheesboro; eight acres which belongs to the trustees of Newton Academy, and seventeen acres sold to Dr. A.. M. Eoster,” with a general warranty of title, and a covenant of seizin. It was proved that the plaintiff had title to all the land described in the bond, except the five parcels contained in the exceptions above stated in the deed, and that defendant took possession immedi*569ately after the execution of the covenant-, and has retained the possession ever since. At the time this deed was tendered to the defendant, the plaintiff demanded the purchase-money -due on the said covenant, which was refused by the defendant.

The defendant’s counsel objected, on the trial below, that the deed offered did not conform to or comply with the conditions in the covenant, and that if the plaintiff was entitled to recover at all, he could not recover interest before the deed was tendered.

The Court held that the deed tendered was a sufficient compliance with the conditions of the covenant, and if they believed the evidence, the plaintiff was entitled to recover the sum agreed to be paid, as the purchase-money, with interest, from the first day of May, 1858. Defendant’s counsel exceped.

A verdict was rendered in favor of the plaintiff according to the instructions of the Court, and, on judgment being given thereon, the defendant appealed.

3lerrim<m and Avery, for the plaintiff.

Diehson, for the defendant.

PeaRSON, O. J.

In a case between the same parties upon the same covenant, which was before us at August Term, 1859, reported in 6 Jones’ Eep. 554,' it was held that the covenants were dependant, and to entitle the plaintiff to recover the purchase-money, it was necessary for him to aver and prove readiness and ability to perform the covenant on his part.

Accordingly, in the present action, a formal declaration is filed, in which it is alleged that-the plaintiff, “in pursuance of the terms of the said writing ©bligatory, tendered and offered to deliver to the defendant a conveyance, signed by the plaintiff, and sealed with his seal, and good and sufficient in law, to convey to the defendant a good and perfect title, in *570fee simple, for the said land, in wMeh the metes• and hownds thereof were fully cutid fairly set out.”

In proof of this allegation, the defendant,, at the trial, offered in evidence a deed which he had tendered, and offered to deliver, in which is set out by “ metes and bounds,” the description of a large tract of land, and then is added “from said tract of land the said Hardy excepts twenty acres sold to Dr. John Dickson, and now owned by Mr. Wallace, ten acres sold by Dr. Samuel Dickson, to Lindsey, and now owned by Marcus Erwin ; twenty acres sold to Mrs. Trescott, now owned by Mr. Cheesboro; eight acres which belong to the trustees of the Newton Academy, and seventeen acres sold to Dr. A. M. Foster.”

His Honor erred in not holding that this allegation was not proved, and that the plaintiff ought to be nonsuited, because of the variance.

One who holds a bond for title, in general terms, could not be expected to accept a deed describing a large tract with exceptions in respect to five parcels of land, with no description besides the number of acres, and the supposed owner — not even indicating to him.in what part of the tract they were situated, and with no metes and bounds; so as to leave him under just apprehension of being liable to be sued for a trespass, no matter at what place he should enter it. In tins case, the the defendant took the precaution to require of the plaintiff a covenant to make a deed in which the “metes and boundaries” of the land, should oe fully andfairl/y set out. Obviously, the deed offered in evidence, does not fulfil this condition. So, that the plaintiff ought to have been nonsuited, because thQjgrohata did not support the allegata.

To avoid this objection, it was suggested on the part of the plaintiff, that the allegation-set out in the declaration of “an offer to deliver a deed,” was not necessary, and may be rejected as surplusage; it being sufficient for him to allege an ability and readiness to execute a proper deed, if such, a one had been prepared by the defendant and tendered to him for execution. This suggestion is met by the fact that, if the al*571legation in question be stricken out, as surplusage, there would,- then, be no averment of a readiness or ability-to perform. But passing by this difficulty, and taking the question to be: is it the duty of the vendor to prepare the deed ? Or is it enough for him to aver that he has title, and is ready to-execute a deed, provided one is prepared by the vendee and tendered to him for execution upon payment of the purchase-money ? "We are of opinion that it is the duty of the vendor to prepare the deed, and have it ready to deliver when he demands the payment of the purchase-money. The covenant is that “ the vendor will malte to the vendee a good and sufficient title, in fee simple, for the land, on payment of the purchase-money.” So, that, according to the ordinary meauingof the words, the one is to pay the money, and the other is to make the title, which, of course, includes- the preparation as-well as the execution of a deed necessary for the-purpose, and' there is no room for an implication that the trouble and expense of preparing the deed, is by agreement of the-parties,. to be borne by the vendee.

This is manifestly the proper construction of contracts of this kind on principle, as is established by many of the cases in England in the old books of reports; Callowell v. Briggs, 1 Salk 112, and the cases there referred to-. Such is assumed to be the law in this State, in the case of Garrard v. Dollar, 4 Jones’ Rep. 175. It is true, a different practice now obtains in England, in the absence of an express agreement as to which of the parties to a contract, for the sale of a tract of land, shall be at the expense of having the proper conveyances prepared, which is usually inserted as a part of the contract ; — a practice which has arisen out of the length and difficulties of modern titles, and the refinements of modern conveyancing in that country, where a purchaser very seldom wishes to take a plain conveyance to himself, in- fee-simple, even if it were practicable to do so, by reason of the outstanding terms for years to attend the inheritance, jointures and other incumbrances and complications of the title. In consequence of which.,, the practice there, is, for the solid-*572tor of the vendor to make out an abstract of the title, which he hands to the solicitor of the purchaser, who investigates the title by reference to the original title papers, and being thus in possession of all the details in respect to the title, it is most convenient for him to prepare the deeds with limitations according to the directions of his principal. See Atkins on Titles 131, (note) (10 Law. Lib. 57.) In our State, this practice never has obtained. We have but little difficulty growing out of the complication of titles, and 'the chief matter is the metes and bounds of the land, w'hichlies peculiarly within the knowledge of the vendor; so, that according to principle, and for thetsake of convenience, we are of opinion that a vendor who wishes to maintain an action at law for the purchase-money, should, at the time of making the demand, have a deed prepared in pursuance of the terms of the contract, and have it signed and sealed, and offer to deliver it on payment of the money.

It is not necessary to notice the other points made in the case, as it is clear the plaintiff cannot maintain his present action.

In respeet to the question of interest, we are inclined to think that the defendant is liable therefor from the day of payment, set out in the contract, as he has had possession, and the plaintiff had title, and was in a condition to have performed his part of the contract at the day, and it would seem the matter has been standing open by mutual forbearance. However, we express no decided opinion, but feel at liberty to suggest that a bill for a specific performance is the remedy usually resorted to in such cases, instead of an action at law; for, in Equity, due allowance can be made, and all matters can be properly adjusted in the decree; whereas, at law, j udgment is peremptory for the plaintiff or defendant. 'Venire cle nemo.

Fee Curiam,

Judgment reversed.