Bennet v. Executors of Pixley , 7 Johns. 249 ( 1810 )

Per Curiam.

The two principal objections to the declaration in this case are, 1. That the plaintiff has not averred that the lands were appraised, or that he was ready to pay the overplus moneys (if any) upon such appraisement j 2. That the land is not described with the requisite certainty.

There does not appear to be sufficient weight in either of these objections.

1. Assuming that there was a covenant on the part of the plaintiff, to pay for the amount of the appraisement beyond the 400 dollars, yet it only went to a part of the consideration, and the rule is settled, that where mutual covenants go only to a part of the consideration, and a breach of that part may be paid for in damages, the defendant shall not set it up as a condition precedent. The covenants in such case are to be regarded as independent. (Boone v. Eyre, 1 H. Black. 273. n. Campbell v. Jones, 6 Term Rep. 570. 1 Saund. 320. n. (c).) The damages sustained would be very unequal if the covenant of the plaintiff was held to be a condition precedent, He in the mean time loses his 400 dollars, and the testator might not lose any thing. The plaintiff had in part (at least) executed the bargain, by paying the 400 dollars, and the testator ought not to keep that sum without conveying the land,because, that possibly there may be a surplus to receive, and he may sustain some damage by the plaintiff not tendering that surplus. This would be unjust. He is bound to convey, and he may then resort to his action, if a surplus should be found to exist upon the appraisement.

2. The testator covenanted to convey “ one certain lot of land lying in Nanticoke," and he has received what was presumed at the time to be the full consideration. It cannot surely lie in his mouth to say that he cannot convey because of uncertainty in the description. The grant would be good by the description in the covenant; and the grantee could render it effectual by averment, as to the certainty of the place and of the lot; id certum est quod certum reddi potest.

Judgment must, therefore, be rendered for the plaintiff.