McChord's Administrator v. Tomlin's Administrator , 33 Ky. 144 ( 1835 )

Chief Justice Robertson

delivered the Opinion of the Court.

Tffis writ of error is brought to reverse a judgment for damages, obtained on a covenant to convey the legal title to a tract of land, on the 15th of Nov. 1822, succeeding the date of the covenant.

As the covenant shows, that the covenantee was to ma^-e ^ covenantor usafe in $200, to be paid on the 1st. of January, 1824,” we are of the opinion, that the giving °f ^ie security, and the execution of the conveyance, should be presumed to have been intended to be concurrent acts j and that, therefore, the plaintiff had no cause of action, without averring, either that he had given, or had offered to give, or was prevented by the defendant from giving, the security. There being no such averment in the declaration, the demurrer to it should have been sustained. As the covenant does not import,that two hundred dollars was the only consideration, and as there is no bill of exceptions showing what proof was heard, we cannot judicially know that the verdict is too high.

Nor is their any ground for objecting to the judgment for costs: a defendant administrator or executor may be liable to costs when, if he were plaintiff, he would not be liable.

But for the defectiveness of the declaration, the judgment must be reversed, and the cause remanded, with instructions to sustain the demurrer. We do not deem it proper now to express an opinion as to the sufficiency of the amendment which was proposed after the demurrer had been overuled.