I am of the opinion that the covenants to pay the purchase money and to convey the land are independent. The defendant agreed to pay the purchaser money, and at certain specified times; and the vendor agreed to convey "upon the express condition" that he did so. No suit was commenced until all of the purchase money became due. But that circumstance did not make the covenants dependent which before were independent. Where the last payment and the conveyance are to be simultaneous acts, and the prior payments have not been made, in a suit for the purchase money, a performance, or an offer to perform, is necessary. (Johnson v. Wygant, 11 Wend., 48; Grant v. Johnson, 1Seld., 247.) But that is not this case as I understand this contract. The payment of all the purchase money was a condition precedent to the right of the defendant to demand a conveyance. Having covenanted absolutely to pay certain sums at the expiration of certain fixed periods, and the vendor having promised a deed on condition that the payments were made, the clear intention of the parties must have been that payment of all the money should precede the conveyance. There was *Page 114 no duty for the vendor to perform until the vendee had performed all the covenants on his part. By inserting the word "condition" or "sub conditione," a condition is created. (10 Co., 42a.; 2 Bac. Abr., Condition, (A.); Platt on Cov., 72.) "Upon condition," is an expression from which a condition precedent usually arises. (Platt on Cov., supra.) The agreement here was not merely to convey "upon" payment being made, but "upon the express condition" that the vendee should perform; while the covenant to pay is without condition. And besides, the meaning of the words "upon condition," has been settled by construction, which should not be disturbed.
For this reason I think the judgment should be affirmed
Judgment reversed.