delivered ihe opinion of the Court.
Meaders Vanderpool commenced an action by petition, in the Circuit Court of Ray county, against George W. Brand, on a note made by Brand to Vanderpool for $830 67: judgment being given for Vanderpool in the Circuit Court, Brand, to reverse that judgment, appeals to this court.
The defendant pleaded nil debit to the petition in debt, and then filed a bill for a discovery, under the 10th section of the 4th article of the act to regulate practice at law, stating that, on the ninth day of August, 1838, he purchased from said plaintiff, Vanderpool, several tracts of land, which said purchase was made for a price, and on .terms expressed in a bond, for a title then made and delivered to said defendant by said Vanderpool; that the said purchase money was to be paid to said plaintiff, by the said defendant, in instalments ; and the last instalment was for the sum of six hundred and eighty-three dollars, and to be paid on or before the ninth day of August, 1840, and for which the defendant executed to the plaintiff his promissory note, according to the said terms; and the said plaintiff was bound said bond to execute to this defendant a good and sufficient deed, with general warranty, &c., whenever said Brand should fully pay and satisfy the said purchase money. The defendant further represehts, that, on the 25th day of September, 1842, on accounting and settling with said plaintiff for interest due on said last instalment, (all previous instalments being paid,) this defendant was found to be indebted to said plaintiff, on accpunt of said last instalment, in the sum of $830 67; and for this sum the defendant executed to the plaintiff his promissory note, on which this suit is brought; that the payment of this last sum of money, &c., the *510last instalment by the defendant, and the making of the deed, were, by the terms of the bond, to be concurrent acts, to be performed at the same time.
The bond for a title is also set out as an exhibit, and bears the same date as the note above mentioned, as given for the last instalment to be paid on this land, to wit, the 9th of August, 1838, and, it'will be recollected, became due on the 9th of ^.ugust, 1840. More than two years afterwards, to wit, on the 25th day of September, 1842, the note here sued on was given to the plaintiff, in consideration of the principal and interest of the note before mentioned. Admitting, for the sake of argument, that the said note made on the 9th of August, 1838, and becoming due on the 9th of August, 1840, should, by the terms of the bond, be paid then only, when the plaintiff conveyed the 1 and, it is difficult to conceive how that condition could be transferred to a note made more than two years after the first note became due, and four years after the execution of the bond for a title. The Circuit Court overruled the motion of the defendant to compel the plaintiff to answer this bill of discovery. It is absurd to say, that the money due on this note was not to be paid till a title to the land was made, for which land a title-bond had been given four years before the making of the note. Common sense would say, from the defendant’s own statement of this ease, that the note here sued on was given in consideration of the first note given up to the defendant to be cancelled, or otherwise annulled, at his will. Where two covenants are independent of, and have no reference to, each other, the averment of the performance of one of them in a suit upon the other will be considered immaterial; and a plea, traversing the performance, will be bad on general demurrer.- — -Simonds’ Administrator vs. Beauchamp.
The Circuit Court committed no error in refusing to rule the plaintiff to answer this bill for a discovery.
The judgment is therefore affirmed.