delivered the opinion of the court.
This was an action of ejectment in the Boone circuit court, instituted by Jewell against the appellant, to recover the possession of a lot of ground in the town of Rocheport.
The case was submitted to» the court.
The appellee gave in evidence a deed for the land in dispute, from Raymond and wife to himself, to which was annexed a postscript, containing an agreement to deliver possession of the premises to the ap-pellee on the 1st of December, 1840, and in the event of their failure so to do, the said Jewell requiring the possession, they agreed to pay such damages, &c., as might be sustained in consequence thereof. The ap-pellee also proved possession of the premises in Raymond and wife, from the date of the deed, to the time of instituting the suit; and also gave evidence of the value of the rents and profits.
The appellant on his part, offered in evidence an agreement between Jewell and one Hadwin, executed in January, 1841, convenanting to convey to said Hadwin the land in controversy, upon the payment of a stipulated price, on or before the first of January, 1842, but stipulating that if the money was not paid on the day mentioned, the deed was to be void. By the terms of this agreement, Hadwin was to have possession of the land, until bis failure to pay the purchase money, on the day fixed in the contract.
Upon this evidence the court was called upon to disregard the deed from Jewell to Hadwin as being insufficient to show an outstanding title; and the court being of this opinion, the appellant excepted and brings the case here by appeal.
Two errors are assigned. The first is, that the court erred in giving judgment for the appellee, when there was ño proof of any demand made by the appellant for the delivery of the possession. This objection seems to be based upon the supposition that the agreement of Raymond to pay damages for failing to deliver the possession when, required, had the effect of controlling and annulling the covenant which immediately preceded it, and which required the delivery of the premises on a specified day. But the covenant to deliver possession on the 1st De*23cember, 1840, we consider as specific and unaffected by the agreement "to pay damages; and the latter may be construed to embrace only such .special damages, over and above the rents and profits, as might be sustained by the failure of the appellant to deliver possession when demanded.
The second error assigned is the exclusion of the deed from Jewell to Hadwin. The bond was a conditional agreement to convey to Had-win, on a day specified. There was no proof offered that Hadwin had ■ever complied with the condition, and of course such a deed could not show an outstanding title.
Judgment affirmed.