after stating the case,, delivered the opinion of the Court. — We are called upon to decide in what sense, and what extents the bond in question was to be void upon the neglect of the defendants U> perform on their part. The question is almost answered by merely stating.the parties to the bond, and noticing their respective rights of actio®. The bond was given by the plaintiff to the defendants. All the stipulations in the bond, against the defendants, are conditions precedent to their enjoying certain privileges of possession, Sic. No action could ever be maintained for the penalty of this bond, but by the present defendants against the present plaintiff. When it becomes void this action.fey the defendants cannot be maintained. And, when it- becomes thus, void by their neglect to perform the duties enjoined upon them, it is just and right, that they should thereby forfeit t-heir right of action upon the bond ; while it would be as evidently unjust, and contrary to. any sound construction of the bond, that the plaintiff should lose his rights by the defendants’ neglect, without any fault on his part. The construction, urged by the defendants’counsel, cannot be supported. The bond is void only as against the plaintiff ; and he may refuse totreat it as void as. to himself j and of this the defendants could not complain.
The defendants’counsel urged a distinction between, the notes ; admitting their liability upon the one first due and payable, but not upon the others. We discover no ground for any such distinction arising from the facts before us. The consideration was good at first ; and it was equally good as to all the notes. It was a sale of a lot of land ; and the bond was the security to the defendants for a title, when full payment should he made. The plaintiff has his remedy upon each note when payable, and the defendants cannot take away this right by any neglect of their duty, nor by any act of theirs short of actual payment.
The plaintiff might destroy his right of action upon these notes, by conveying away his title to the land, and rendering himself unable to. convey such title to the defendants. Had he done so immediately after giving this bond, neither note could have beets
This is like the common caseof a sale of land, and a bond given for a deed, when payments shall be made, excepting the provision that defendants are to take possession of the land, but that the plaintiff may reenter upon the first and any neglect of the defendants to perform on their part. But this provision does not at all affect the question of a recovery upon these notes.
The judgement of the county court is affirmed.