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. D., 1857, between J. F. E. Hardy, of the county of Buncombe, and State of North Carolina, and W. F. McKesson, of the county of Burke, and State aforesaid:
WITNESSETH, 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 *Page 555 the 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 which the defendant appealed. The intention of the parties, to be arrived at from the motive of the transaction, and to be gathered from the instrument itself, also, established the position of the plaintiff in this case. It is to bepresumed 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 proper construction to give the instrument in question. The defendant says, that the word "whenever," meansco 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 wordwhen emphatic. Webster in defining the word when, gives its various meanings, and the fourth definition he 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. Both plaintiff and defendant signed the covenant, and the defendant has his remedy, and it is apparent that he intends to rely upon it. 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, we 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, *Page 557 and the plaintiff to make a good title "whenever" the money is paid. Now, 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 by 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 dependent, *Page 558 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.
PER CURIAM, Judgment reversed.