WADE vs KILLOUGH et al., 5 Stew. & P. 450

LIPSCOMB, Ci J. This was ail action of debt, brought in the County Court of Jefferson County, and transferred, by consent of parties, to the Circuit Court. The action was founded on a penal bond, the condition of which was, that it was to be void, if the defendants made the plaintiff, on or before the twenty-fifth day of December, one thousand eight hundred and twenty-eight, a good and sufficient” title to four half quarter sections of land, designated by their numbers, and according to their legal subdivisions. The plaintiff assigned seven breaches of the condition of the bond.

The defendants, after craving oyer of the condition of the bond, plead, first, in substance, that they had, together with one Isaac Kil-lough, made a good and sufficient title, according to the true intent and meaning of the said obligation.

The second plea of the defendants, is in the following words : “And for further plea, in this behalf, according to the statute, &c. said defendants say actio, non, because, they say, that they, the said defendants, after the making of the said obligation above stated and set forth, in the said plaintiff’s declaration, that is to say, on the said twenty-fifth day of December, one thousand eight hundred and twenty-eight, at, to wit, in the County of Jefferson, aforesaid, were ready and willing, and have, at all times been ready, and do hereby offer to make to the said plaintiff, good and sufficient titles to the said several tracts or parcels of land, above stated and set forth, in the said plaintiff’s declaration, according to the spirit, true intent and meaning of the said obligation, and the condition thereto attached, at, to wit, in the County of Jefferson aforesaid; and this they, the said defendants are ready to verify.” The third plea averred a readiness and willingness to make the titles ; but, that the plaintiff had never demanded titles.

To these pleas a general demurrer was filed, .which was overruled, and the plaintiff declining to take issue, or reply, the Court rendered judgment in favor of the defendants — which judgment is now sought to be reversed. We shall not decide on the right of the plaintiff to assign more than one breach to the same stipulation. The condition of the bond sued on, is composed of a single stipulation, and the plaintiff has assigned seven breaches: this, in argument, he contended he had a right to do, under our statute.

But it is questionable, whether our statute intended to do more than authorise as many breaches to be assigned as there were distinct things to be done. In this aspect, the statute is a beneficial one, because it avoids a multiplicity of suits, for the recovery of distinct damages, for each breach. The allowance of more than one assignment to each stipulation, would be productive of much perplexity in pleading, without affording any adequate benefit, as it would not 'increase damage; and the defendant can not be bold ILLIe for a supposed breach, not within his covenant.

In this case, one breach would have been sufficient to embrace the fact of a failure to make the good and sufficient titles; and yet there have been seven assigned, some of them clearly not within the contion of the bond. But as we decline deciding on the plaintiff’s right to multiply his assignments, we shall likewise decline saying whether his bad assignments should be held fatal on general demurrer. The first plea of the defendants was objected to, on two grounds, by the plaintiff.

The first, that it did not plead performance in the terms of the condition ; and, secondly, that it introduced a new party to the performance plead r that is to say, the defendants, and one Isaac Killough, had made good and sufficient titles to the plaintiff, for the tracts or parcels of land specified and designated, in the condition. There is certainly an uncertainty or an evasiveness in the first plea — it may be true, and yet not an answer to the action.

It may be true, that good and sufficient titles may have been made, at the date of the plea; and not at the time specified by the bond, or not even before the commencement of the action. If if had averred performance, before the commencement of the suit, it would, at least have been a good answer to one of the plaintiff’s assignments; and, whether a good answer to the condition of the bond, or not, I can not see how the plaintiff could have objected.

Such plea, if faulty, would he excused by the defective assignment; hut, as before observed, it does not show, that the titles were made before the coiimiencement of the suit. The objection, that another person, not known to; the bond, joined in making title, is not believed to be sustainable: the title, if good without the additional name of Isaac Killough, could not be vitiated by his name. So far as the personal obligation of the makers of tlis deed, to perform its covenants, are to he taken into view, the security was not diminished, hut enhanced.

The second plea avers a readiness and willingness to make titles, on the dry named in the bond. I am not apprised of any precedent for a plea of this kind, in any action, brought on a penal bond, conditioned to make titles.

I presume, that seek bonds are not frequent in Ifnglan/d, nor in the old States of this Union; but, :n this State, the highest evidence of perfect title to meet of cor land, issues from the head cf cur federal government; and, in consequence of the vast quantity of land sold by the government, it frequently happens, that perfect title can not be obtained, for years after the purchaser has acquired a right; and, in the mean time, a contract of sale is often made — and. the most that can be done, is to give bond, to make title; at least, this is most usually done.

But, I apprehend, that the soundness of the plea may be tested, in this way. — If it was the duty of the plaintiff to present such titles as he was satisfied with, to the defendants, for execution, before he could claim a forfeiture of the bond, then the plea would be good — because, under that view, the defendants could not perform, until a presentation had been made to them, of the titles, for them to execute. In Sugden on Vendors, 182, the doctrine will be found laid down, that it is the duty of the purchaser to prepare and tender the deeds.

The author thinks it was formerly otherwise, when the simplicity of the common law reigned, and possession was the best evidence of title: and, he says, the rule had been rendered somewhat doubtful, by some recent dicía, that the vendor should prepare and tender titles.— But, the author says, the point came distinctly before the Court of Exchequer, in a late case, and it was, in conformity to the present practice of the profession, decided, that the purchaser, and not the vendor, is bound to prepare and tender the conveyance. The case he refers to, is Baxier vs Lewis.

And, gays, the same rule had been expressly recognin-by Windham, Justice, and denied by no one. The same author, continues- — “It is settled, that if the conveyance is to be prepared at the expense of the purchaser, lie is bound to tender it.— Seward vs Willock. Now, it is admitted, on all hands, that the expense of the conveyance must be borne by the purchaser, if there be no express stipulation to the contrary.

Therefore, when there is no such stipulation, the purchaser is bound to tender the conveyance.” He says, farther, that “ although it should only be declared, that the conveyance should beat the expense of the purchaser, he would be required to prepare the conveyance.” It would seem that the result of an application of these principles, would be, that if the covenant was dependant, and the purchase money to be paid at tlie same time that title was to be made, the vendor might maintain an action, without tendering a conveyance.

And, farther, the result would seem to be, that when the vendor undertook to convey on a particular day, a readiness to convey on that day, would be a good plea, if the purchaser had not tendered the conveyance. In argument, an objection was taken to the plea of readiness and willingness to convey, at the day— because it did not aver, that the defendants had given an abstract of their titles.

When the title was complicated, and had to reach far back, and recite the different mesne conveyances, and incumbrances with which it was charged, an abstract of the vendors’ title was essential, to enable the purchaser to prepare title. There can not, however, be the same necessity, with us; our titles are mostly derived from the government, and all of a recent date: and the description in this case, in the condition of the bond, is a sufficient abstract of title, to enable the purchaser to prepare the conveyance.

The number of the section, of which the half quarter is a sub-division with the number of the range and township, is a sufficient description of its locality. But if an abstract ought to be furnished, it will be seen, by a reference to the English practice, that it should have been demanded by the purchaser from, the vendor, at such time as he required it, for the purpose of preparing the conveyance. There is no question, but the vendor is bound to furnish all the information the purchaser may require, to enable him to have a correct draft of the conveyance made out.

The uniform practice in England, lias, no doubt, been, for the purchaser to make out the conveyance. A difoerent practice has, perhaps been adopted, in some of the States of the Union; but custom has established no law, on this subject, with us. And wo are now called upon, to say, whether we will disregard the common law, on this subject, and lay down a different rule. Many rules of the common law, are founded on a state of things that can not exist in this country: and it would often be doing serious injustice, to apply the principles of the common law, to such new state of things.

It would seem, that in such casco, the maxim, “Cessante ratione, cessat ei ipsa lex” — the reason having failed, the law lias also ceased,) should be applied. i mi aomKionmg Now, there may be good ;o the English practico, cf mnkhg out a formal abstract of titles, found, in the foot, that ouch is the simplicity of our titles, that a contract cf sale, in most cases, would give di the info'; nation necessary to the conveyancer, in drawing out the conveyance.

If, however, there should be an exception, no one would question, but it would be the duty of the vendor, to furnish the requisito laformation : and the failure to do so, when required, would be an infraction of his bond. There does not, however, seem to be the same reason, and certainly, no urgent necessity, foam any state of things existing here, so to change and discharge the purchaser from his obligation, to make out and tender the conveyance, as to require this to be done by the vendor.

And there is one reason. why the title should be made oat and tendered by the purchaser, stronger, in ibis country, than any one that existed, perhaps, in the country where it originated. The purchaser generally acquires the possession,with the bond to make titles. This bond is assignable, by our statute : the purchaser may assign the' bond to a stranger, and the vendor may not know where to apply, to make a tender of title.

If the purchaser should not apply at the day, it would not discharge the vendor from his obligation — he might apply after the day, with his conveyance, and the vendor would be bound to execute it. If, however, he'applied on the day and tendered a conveyance, and the vendor refused, this would amount to a breach. So, if after the day. But, if we establish a dhferent rule, the vendor, if he fails to convey on the day, (and this would often be the case, from not knowing where Ms bond was,) could not, in a Court of law, discharge himself from the penalty of the breach of Ms obligation, by making title after the day.

There is much good reason,, therefore, for continuing the rule, that the purchaser shall prepare and tender the deed, before he shall be allowed to claim the forfeiture from the vendor. I have said before, that such bonds, as the one on which this suit is brought, are not common in England. From the books, it appears to be tbe practice, to make a contract of sale, and make a deposit, by ■way of earnest, of a part of the purchase money; and, if there is a failure to make titles, the purchaser applies to withdraw the deposit, and, if the contract will authorise, sues, likewise, for damages.

Or, he files his hill in Chancery, to compel a performance.

But he can neither demand the deposit, nor file a bill for a specific performance, until he has tendered a conveyance. ■ One of the most marked differences, however, in the practice in England and in this country, is, as before intimated, that the possession, here, almost invariably accompanies the bond for titles, and there, possession was rarely given, until the conveyance was executed; and this difference would seem to claim an indulgence to the vendor, because the purchaser is in possession, and enjoying the benefit of the purchase, and can not be, often, in any way prejudiced by the conveyance not being made on a particular day.

We are, therefore, of the opinion, that the second plea is good : and this being sufficient to affirm the judgment, we omit inquiring into the sufficiency of the other pleas. Judgment affirmed. Forr.Exc. Rep 61. 1 Lev. 44. 5East.198 3East.410