Ross v. Turner, 7 Ark. 132 (1846)

July 1846 · Arkansas Supreme Court

7 Ark. 132

Ross vs. Turner et al. Ads. use &c.

Covenants of seizure and of right to convey are personal covenants, not running with the land, nor passing to the assignee, but are mere chosea in action, not assignable at common law.

Covenants of warranty and of quiet enjoyment are in the nature of a real covenant, and run with the land, descend to the heirs, and are made transferable to the as. signee — as held in Moulder vs. Logan, 3 Ark. E. 313;

It is necessary for the creation and existence of a real covenant, that there should be a privity of estate between the grantor and grantee, arid such covenants are usually contained in the deed of conveyance itself.

Where one covenants that she is entitled to a Lovely donation claim, and obligates herself to make title when the patent shall have issued, but has no right or authority at the time of the execution of the deed, there is no privity of estate, no conveyance executed, but the instrument is a mere personal covenant, and there is an inatanta. neous breach upon the part of the obligor, upon which she is liable te be sued at any time.

Although the covenant is one concerning title, it is broken before the land passes, and therefore forms the exception to the rule, that all covenants concerning title run with the land.

The covenant being personal, on the death of the obligee, it goes to his administrator, and he alone is entitled to sue upon it.

To an action for breach of the covenant, a plea alleging that the obligee assigned one half of his interest in the deed to D. and that defendant, and others whose title is not shown, executed a conveyance to D. for the whole of the land, is bad on demurrer.

Writ of Error to the Circuit Court of Crawford County.

Debt, determined in the Crawford circuit court, at the April term 1844, before Brown, judge. The declaration, in substance, follows:

“ Jesse Turner and George W. Paschal, as administrators, &c. of David Thompson, dec’d, who sue for the use of John Drennen, complain of Rachel Ross of a plea &c., &c.

For that whereas the defendant, heretofore, and in the life-time of the said David Thompson, to-wit: on the 13th day of April 1835, at, &c. by her certain writing obligatory of that date, sealed &c. &c. acknowledged herself to be held and firmly hound unto the said David Thompson in the penal sum of $2000 above demanded, &c., to the payment whereof well and truly to be made to the said David Thompson, his heirs, executors, administrators or assigns, she thereby hound herself, her heirs, executors and administrators.

Which said writing obligatory was and is subject to a certain condition thereunder written, whereby reciting that the said Rachel had, for and in consideration of the sum of three hundred dollars to her in hand paid by the said David Thompson, the receipt whereof was thereby acknowledged, granted, bargained, and sold and did thereby grant, bargain and sell, to the said David Thompson, his heirs and assigns, forever, all that certain claim,grant or' donation of two quarter sections of the Public Lands of the United States, to which she was entitled as the sole heir at law of her husband, John Ross deceased, under the provisions of an act of Congress entitled, “ An act to aid the State of Ohio in extending the Miami Canal from Dayton to Lake Erie, and to grant a quantity of land to said State to aid in the construction of the canals authorized by law; and for making donations of land to certain persons in Arkansas Territory,” approved the 24th May 1828, as an actual settler on that part of the Territory of Arkansas, which, by the first article of the treaty between the United States and the Cherokee Indians, west of the Mississippi, ratified 23d day of May 1828, had ceased to be a part of said Territory: and reciting further that the said Rachel, heir at law of John Ross deceased, and also executrix, had removed from the county which had ceased to be a part of said Territory "agreeably to said treaty, and in conformity with the true intent and meaning of said treaty, and was thereby authorized, by said act therein before recited, to enter with the proper Register of the Land Office in, Arkansas a quantity not exceeding two quarter sections of land, on any of the public land in that Territory, the sale of which was authorized by law: and reciting further that the said Rachel did thereby irrevocably nominate, appoint and constitute him, the said David Thompson, her trite and lawful attorney in fact, with power of substitution, for her, and in her name, to choose, select, and make choice of any two quarter sections of land, which were subject to entry under the provisions of said act therein before recited, which he the said David Thompson, his heirs or assigns, or such lawful attorney as he might appoint under said substitution, might wish to enter or locate, and to make application for the entry and location of the same, with the register of the proper land office in Arkansas, and to sign her name and affix her seal to any notice, application, or other instrument of writing that might be llecessary for the entry or location of the same, and with the full and exclusive power and authority to ask for, demand and receive any patent or patents that might be issued by the President of the United States, in her name or in that of her heirs, executors or administrators, for the two quarter sections of land that might be so entered, and to hold and keep possession of the same as his or their lawful property; and further to do and perform all and every lawful act and deed, in her name, and using her seal and signature, that might be necessary or requisite for making the said location or entry, and obtaining or procuring the patent or patents for the same from the President of the United States, thereby ratifying and confirming all and every lawful act and deed which said David Thompson, his said attorney, or any substitute whom he might appoint, should or might do or perform touching the premises: thereupon the condition of said writing obligatory was and is declared to be such that if the said Rachel Ross, her heirs, executors or administrators should well and truly make and execute, or cause to be executed, on the reasonable demand of the said David Thompson, his heirs or assigns, after the patent or patents which should be issued for the said lands so to be entered should be received from the President of the United States, a good and sufficient deed, in fee simple, to the said David, his heirs or assigns forever, with a general warrantee of the title and estate in and to the said two quarter sections of land, together with a relinquishment of dower therein, to him the said David, his heirs or assigns, against the lawful claims or demand of herself or her heirs, and against the lawful claim or demand of all and every other person or persons whomsoever, claiming by, through or under her or them, and free and clear of all incumbrances whatsoever, then said obligation to be void and of no effect, but else'to remain in full force and virtue.

And the plaintiffs further say, that said donation claim in said condition of said writing obligatory mentioned, was afterwards, to-wit: on the 23d September 1837, entered and located at the land office at Fayetteville, in the State of Arkansas, by the heirs at law of said John Ross dec’d, upon the following described lands, to-wit: the south-west quaiter of section 24, and the north-east quarter of fractional section 23, in town. 9 north, of range 32 west of the 5th principal meiidian, north of the Arkansas river, situate in the county of Crawford, containing 319 acres and 80-100 of an acre. And the said plaintiffs further say, that said donation claim belonged to, and was proven up by and confirmed to said John Ross in his life-time, and that on the 20th day of April 1812, a patent issued from the President of the United States, for the lands aforesaid, upon and under the entry and location aforesaid, and as a donation and grant under the act of Congress aforesaid, to said John Ross and his heirs at lawT.

. And for assigning a breach of the said condition of the said writing obligatory, the plaintiffs, according to the form of the statute, &c., further say, that the said Rachel never had, nor hath any fee simple or other lesser estate in said donation claim or lands, except her dower interest therein as a widow of said John Ross dee’d, nor any power, right or authority to grant, bargain, sell, alien, convey, confirm, assure or assign said claim or said lands, or any part or parcel thereof, nor ever could nor now can convey or assure to said David or his administrators, or to said John Drennen his assignee, such title to said lands or any part thereof as by said condition she hath bound herself to do; contrary to the form and effect of said condition of said writing obligatory. And for assigning a further breach of said condition of said writing obligatory, the plaintiffs, according to the form of the statute, &c., further say that the said Rachel hath not made, nor caused to be made and executed, either to said David in his life-time, or to his administrators since his death, or to said John Drennen, who is the legal assignee in this behalf of said David, a good and sufficient title in fee simple to said lands; although said Rachel has, since the issuing of the patent aforesaid, to-wit: on the ■— day of April 1843, by said John Dren-nen, been specially requested so to do; but therein wholly failed and made default, contrary to the form and effect of said condition of said writing obligatory. By which said several breaches, said writing became forfeited, and thereby an action hath accrued to the plaintiffs, as administrators, as aforesaid, for the use aforesaid, to demand and have of and from the said defendant the sum above demanded” — then followed the usual breach in debt, and profert of letters.

The defendant filed a plea as follows:

And the said defendant comes &c., and says actio non, because she says that after the sealing and delivery of the said writing obligatory in said plaintiffs declaration mentioned, to-wit: on the 20th day of September 1837, the said David Thompson, to whom said sum of money in the said writing obligatory specified was to be paid, assigned, and transferred one half of his interest in and to said writing obligatory to said John Drennen: and that the said defendant, afterwards, to-wit: on the the 23d day of July 1842, at, &c., ■at the instance and request of the said John Drennen, made and executed, and as her act and deed, signed, sealed and delivered a ■certain, indenture, bearing date the day and year last aforesaid, whereby she, together with George Couch, Marinda Couch, John Couch, Ann Couch,' Mahaly Couch, and Benona Couch, bargained, granted and sold unto tire said John Drennen, his heirs and assigns all the estate, right, title, interest and property, claim and demand whatsoever of them, the said defendant, and the said George, Ma-rinda, John, Ann, Mahaly and Benona, in law or equity, present or prospective or otherwise however, of, in, to or out of the same tract or parcel of land upon which the said donation claim, in the said writing obligatory mentioned was entered and located in manner and form as alleged in said plaintiffs’ declaration, together with all and singular the privileges, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining, and the said defendant avers that the said John Drennen, then and there received and accepted said indenture in full satisfaction and discharge of said writing obligatory in said plaintiffs’ declaration specified; and this defendant is ready to verify; wherefore,” &c.-

The plaintiffs demurred to the plea, the court sustained the demurrer, and on writ of enquiry the jury found the breaches true, and assessed plaintiffs’ damages at $>466 60, and judgment was rendered accordingly.

Defendant brought error;

Blackburn, for the plaintiff.

The 1st question involving the inquiry of this court is whether or no the plaintiffs in the court below show by their declaration, such right or interest m the subject matter of the suit as will entitle them to have or maintain the same.

The covenants set out in the declaration are real covenants and run with the land. In the case of Middemere vs. Goodale, Cro. Car. 503,■ it was held that “if a man covenant with another, his heirs and assigns, to make further assurances, it runs with the land, and the assignee shall have the benefit of it;” The declaration in this pase shows that the plaintiff in error covenanted with the said David Thompson his heirs and assigns (at a future day,) to-wit: after the President of the United States shall have issued the patents for .the same, to make a good and sufficient deed in fee simple to the said David his heirs and assigns with a general warranty.

In-the case of Wittry vs. Mumford, 5 Cowen 138, the court affirms the doctrine in the case of Spencer, 5 Go. R. 17, “ that a covenant to warrant and defend is a covenant which runs with the land, and the assignee is entitled to the benefit of all such covenants, is a proposition that needs not the citation of an authority for its support.” 4 Cru. Dig. 452 to 457. Therefore the administrators of Thompson had no interest in the covenant, and none could sue but his heirs and assigns, if the covenant was assigned as alleged in the declaration.

In the case of Kingdon vs. Nottle, the court ruled that covenants that run with the land do not go to the executrix, and that she must show some interest in the covenant to be enabled to maintain the action.

It is said in Bacon’s Ábr. Covenant, E. that covenants real descend to the heir, and he alone shall take advantage of them. See Shep. Touch. 171.

“ The covenants of warranty and of quiet enjoyment are in the nature of a real covenant and run with the land.” So said the court in the case of Logan vs. Moulder, 1 Ark. R. 320.

But if the court should conceive that the covenants are real and do not run with the land and are not assignable, then in that case, the plea of accord and satisfaction interposed by the plaintiff is a good bar to the action and the court below erred in sustaining the demurrer thereto.

The suit w,as instituted for the benefit of John Drennen who alone is responsible for the costs in the case: the covenant in that view of the case not being assignable in law, being a mere chose in action, Drennen might well accept a less than fee simple estate in satisfaction, which would be a good accord and satisfaction as to him, although it would not as to Thompson had he been living. The plaintiff in error was not bound by the covenant to convey to Dren-nen, if the covenant did not run with the land, and any estate that he might accept as a satisfaction would be a good bar to the action.

The payment of a horse &c., in satisfaction of money to a party is a good accord. Com. Dig. Accord, B. 1. So to pay to another by the appointment of the plaintiff of so much is a good satisfaction.

Did not Thompson by the assignment appoint the plaintiff in error to pay Drennen, without assigning any legal right ? If so, the subsequent deed made and executed to Drennen was a good satisfaction as to Drennen: for, if the covenant was a mere chose in action Drennen acquired no interest by the assignment, and the damages accruing by the breaches of the covenant, when recovered, would be assets in the hand of the administrators, in which Dren-nen would have no interest or right. The plea in form is substantially good: it avers that the deed was executed in satisfaction, and was received in satisfaction: it is an accord executed, which is a good bar to the action. 1,9 Wend. 410. 9 Coke 80, Paytoos Case.

Whatever claim he might have against the estate of Thompson for the non-compliance of the defendant in the court below to her covenants, he, Drennen, would be required to establish his claim before the probate court, and have the same classified: the payment of which would depend on there being assets sufficient in the hands of the administrators to pay all claims that were classed before it &c.

In the case of Logan vs. Moulder, this court say that the rule of damages is the purchase money with interest; that if the obligor had no estate there was a breach of covenant as soon as the same was signed, and interest of course would accrue on the purchase money to the grantee from the commission of the breach. But in the case of the subsequent assignment of the covenant, it was ruled in the case of Lewis vs. Ridge, Oro. Eliz. 863, that “an assignee shall not have an action upon a breach of covenant before his own time Therefore Drennen could not recover interest upon the purchase money that accrued before he became the .assignee: he has no right or interest in such damages.

The court will perceive that the damages assessed amount to the purchase money and interest up to the time of the assessment of the damages. Drennen could not claim interest on the purchase money, but from the time he became the assignee of Thompson.

Pike & Baldwin, contra.

It seems to us there can be no serious question as to the insufficiency of the plea: it is certainly bad. The plea shows no accord and satisfaction, because it shows nothing advantageous to the plaintiffs’. It is like a plea averrin gacceptanee of a smaller sum in satisfaction of a larger. Pope vs. Tunstall et al. 2 Ark. 223, 224. It appears plainly that the plaintiffs’ intestate or Drennen received no benefit.

All the cases establish this principle. The amends given by the accord ought not to be the party’s own, but must be some charge to one party pr profitable to the other. Onely vs. El. of. Kent, 3 Dy. 356, pi. 39. Acceptance of £29 in satisfaction of £200 is not good. Anon., Moore 47. So, £5 for £15, for it must appear to the court to be a reasonable satisfaction. Cumber vs. Wane, Sir. 426. Adams v(¡. Ta/pling, 4 Mod. 88. Pinnel’s Case, 5 Co. 117. Fitch vs. Sutton, 5 East 23Q. Dederick vs. Leman, 9 J. R. 333. Mechanics’ Bank vs. Hazard, 13 J. R. 353* Howe vs. Mackay, 5 Pick. 44. Thonias vs. Heathorne, 3 I), ¿p R. 647. B. C. 477.

An accord must appear to be advantageous to the party, or it is no satisfaction.. Keeler vs. Neal, 2 Watts 424. Fisk vs. Spain, 1 Tenn. 391.

The delivery of a feoffment cannot be pleaded in satisfaction pf a cpvenant. Wyvtt vs- Stapleton, 1 Sir. 615.

Plea of acceptance in satisfaction of the part doing what by the covenant was bound to be done, is always bad. Adams vs. Tapling, 4 Mod. 88.

The plea being bad the plaintiff in error looks back to the decla-tipn. We think it equally clear that in it there is no defect. The suit was on a bond with condition. Having- sold to Thompson an unlocated donation claim, and given him authority to locate it, in which she had none but a dower interest, if any, Mrs. Ross bound herself to make him a title in fee simple when a patent should issue: and the ground of action is that she had no title to the land when if, was located. The plaintiff in error insists that the covenant here is one running with the land, and that therefore the administrators of Thompson cannot maintain the action, but his heirs or assigns should sue for the breach.

Covenants real alone pass by deed to the grantee, but covenants pcpspnal do not. A covenant real has for its support something annexed to, or inherent in, or connected with, land or other property, and runs with the land, so that the grantee of the land is invested with it, and may sue upon it for any breach happening in his time. Such covenants have the distinguishing characteristics of containing stipulations against future acts and are alone capable of violation subsequent to the delivery of the deed containing them. This quality it is that annexes them to the title in whatever hands it may be and renders them assignable. Hence covenants of warranty and for quiet enjoyment, which are broken only by, and not until a future eviction, and covenants for future assurance are real covenants; which covenants that the grantor is well seized, that he has a good right to convey, that the premises are unencumbered, and others in the present tense, a re personal covenants and not annexed to and running with the title. From the nature of the acts covenanted for, they are broken at the delivery of the deed containing them, and are incapable of future violation. By their breach they become immediately choses in action and incapable of assignment. Davis vs. Lyman, 6 Conn. 255. Sprague vs. Baker, 17 Mass. 586. Lewis vs. Ridge, Cro. Eliz. 863. Luay vs. Leving-ton, 2 Lev. 26. Greensby vs. Wilcox, 2 J. R. 1. Hamilton vs. Wilson, 4 id. 72. Abbott vs. Allen, 14 id. 248. JBeckford vs. Page, 2 Mass. 455. Wyman vs. Ballard, 12 Mass. 304. Norman vs. Wells, 17 Wend. 136. Logan vs. Moulder, 1 Ark. 320.

And even in respect to a real covenant it must be assigned before it is broken, because the breach renders it a chose in action and therefore unavailing, so far as it respects the act constituting the breach. Davis vs. Lyman, 6 Conn. 256. Lewis vs. Ridge, Cro. Eliz. 863. Luay vs. Levington,2 Lev. 26.

No doubt, therefore, the plaintiff’s counsel is correct in asserting that covenants of warranty, for quiet enjoyment and further assurance run with the land. If the grantee dies they go to his heir, who may sue for any breach happening in his life-time. So if the grantee conveys, they go to his grantee who has the same right. But then, what has this to do with the case? The first breach in this case is want of title at the time when the covenant was made. This breach occurred immediately on the making of the bond, was a chose in action not assignable and does not run with the land. The words “grant, bargain and sell,” include a covenant of seizin by positive statute. Terr. Dig. 131; for although that provision refers in terms to deeds of land alone, yet this court in Logan vs. Moulder has put a bond of this kind on the same footing with a deed, and the plaintiff does so by insisting on the doctrine as to covenants running with the land: which really only applies to conveyances and leases of the land itself. And in Logan vs. Moulder the court expressly settle the whole question, for they declare that wherever a person by his conveyance asserts a title, that title may be denied in an action on the deed: and that “in all personal covenants where the grantor has no right or title to convey, the breach of the covenant happens, if at all, at the very moment of time the deed is executed: and that a breach averring want of title is good.”

Wherever a covenant goes to the title, as of seizin, and against incumbrances ; and where the covenantor parts with his title to fulfil his covenant, this departure is an immediate breach. Sir Anthony Main's Case, 5 Co. 20. Maine vs. Scot, S. C. Moore, 452. Cro. Elite. 449, 479. Poph. 109. 2 Anderson 18, Case XII. All which are the same case. Norman vs. Wells, 17 Wend. 159. A total inability at the outset, to comply with the covenant is equally a breach of it.

We know that in Eingdon vs. Nottle, 4 M. S. 57, and 1 id. 357, it was held that so long as the defendant had no title there was a continuing breach, for which an assignee might sue. But that decision is opposed to the established law of Westminster Hall, and to all the decisions in these States, and expressly overruled in Mitchell vs. Warner, 5 Conn. 497, and Davis vs, Lyman 6 Conn. 256, and Logan vs. Moulder, as well as all the other cases above cited, are directly in its teeth.

Where there are covenants both of seizin and warranty, if the covenant of seizin is broken, the covenant of warranty cannot be; nor, in such case, can the latter descend to the heir or vest in the assignee. Sweet vs. Patrick, 2 Fair/. 180. Hacker vs. Storer, 8 Greenl. 228. Por when the covenant of seizin is broken nothing passes by the deed, and the substratum having failed, the covenant of warranty cannot descend to the heir or vest in the assignee. It cannot run with the land, for none having been conveyed, there is no land for it to run with, id. It would be hard for the same reason to find any covenants here running with the land.

Not only is a covenant of seizin broken when made if the grant- or then had no title, but the fact that he obtained good title before suit brought cannot be pleaded in bar, but only offered in mitigation of damages. McCarty vs. Leggett, 3 Hill 134. Where there is a covenant of authority to demise and for quiet enjoyment, both are broken by a failur-e of title, and the latter will not pass to an assignee. Andrew vs. Pearce, 4 Bos. <$• Pull. 168.

To create a covenant which will run with the land, there must be a privity of estate between the covenantor and covenantee. Morse vs. Aldrich, 19 Pick. 453. Spencer’s case, 5 Co. 16 Cole's case, Salk. 196. 3 Wile. 29. Webb vs. Russell, 3 T. R. 402. Htird vs. Curtis, 19 Pick. 463.

Even if it were held that the words “ grant, bargain and sell ” in this case, do not amount to a covenant of title, the first breach is still well assigned: because the want of title at the time was an immediate breach of the covenant té convey — and being so, a chose in action not going to heir or assignee. A condition to make a new lease to lessee is broken if ever obligor was disabled to make it. Scott vs. Mayne, 2 And. 18, A condition to make an estate is bioken by the party disabling himself to make it by making another estate. Lord Cromwell vs. Andros, 2 And. 69, 71,

But no doubt the words do contain such covenant. A covenant in law is made by the word concessit. Coleman vs. Sherwin, Garth. 98. And if A. assigns and transfers to B. all moneys that shall be allowed him in lieu of his share in a ship, an action lies on the covenant implied in the words “ assign and transfer,” though the subject of the covenant is a chose in action. Peeving vs. Far rington, 1 Mod. 113.

It is unnecessary to pursue this matter further. There being one good breach, it was sufficient on general demurrer: and when the demurrer to the pleas reached back to the declaration, it was necessarily sustained inasmuch as it could only operate like a general demurrer at common law. There being one good breach the judgment below was right. We therefore have not noticed the second breach; which was unimportant inasmuch as the first, if true, showed that the whole covenant was broken;

Oldham, J.

The main question presented by the record in this case is, whether the covenants contained in the deed are real covenants and run with the land, and descend to the heir, or personal covenants and go to the administrator. We think the principles laid down in Logan vs. Moulder, 1 Ark. Rep. 313, are decisive upon the question. It is there said “ the old covenant of warranty usually inserted in ancient deeds, and the action upon them, have long since become obsolete in England, and it is believed they never had any legal existence under our form of government; they were real covenants running with the land, whereby the grantor of an estate in freehold warranted the title, and he and his heirs üpon voucher, or judgment rendered against him in a writ warfan-tía chartce, were bound to give other lands to the value of those from which there had been an eviction by a paramount title :■ the heir of the warrantor was liable only on the condition that he had other land of equal value cast upon him by descent.

“ The introduction of personal covenants into modern deeds has long since superseded this mode of conveyance; and the usual covenants'in such case, are, First, that the grantor is lawfully seized: Second, that he has a good title to convey: Third j that the land is free from incumbrances: Fourth, that the grantee shall quietly enjoy: Fifth, that the grantor will warrant and defend the title against all lawful claims.

“ The covenants of seizin and of right to convey are personal covenants, not running with the land, nor passing to the assignee, but are declared to be mere chases in action, not assignable at common law. The covenants of warranty and of quiet enjoyment are in the nature of a real covenant and run with the land, and descend to the heirs, and are made transferable to the assignee.” And the same doctrine is laid down in 4 Kent’s Com. 470, 1, 2, Chancellor Kent thus distinguishes between covenants that are in gross, and covenants that run with the land. “ The distinction between the covenants that are in gross and covenants that run with the land (and which are covenants real, annexed to, or connected with the estate, and beneficial to the owner of it and to' him only) would seem to rest principally upon the ground that to make a covenant run with the land there must be a subsisting privity of estate between the covenanting parties. A covenant to pay rent or to produce title deeds, or for renewal áre covenants of the latter character and they run with the land. All Covenants concerning title run with the land, with the exception of those that are broken before the land passes.” 4 Kent Com. 472.

It is necessary for the creation and existence of a real cdvenánt that there should be a privity of estate between the grantor and grantee, and such covenants are usually contained in the deed of Conveyance itself. But here there is no privity" of estate, no conveyance has been executed, but the instrument is a personal covenant that the obligor is entitled to a Lovely donation Claim, and obligating herself to make title when the patent shall have issued, and having no right or authority at the time of its execution, there was an instantaneous breach upon the part of the obligor, upon which she was liable to be sued at any time. Logan vs. Moulder, ubi supra. Although the covenant is one concerning title it is broken before the land passes and therefore forms the exception to the rule, that all covenants concerning title run with the land; All the doctrine relating to covenants which run with the land, is wholly inapplicable to such a covenant as the one declared upom We are therefore of opinion that the instrument set forth in the declaration is a personal covenant, goes to the administrator, and that he alone is entitled to sue upon it.

The remaining question is as to the sufficiency of the plea of accord and satisfaction interposed by the defendant below, and to which a demurrer was sustained. It is not necessary to inquire what will constitute a valid accord and satisfaction, available as a defence in such a case as ’ the present. This was a covenant to convey three hundred and twenty acres of land to David Thorny* son. The plea alleges that Thompson assigned and transferred one half of his interest in the writing obligatory to John Drennen* and that the plaintiff in error with several other persons executed a conveyance to Drennen for all the land. What interest or title those other persons joining in the conveyance had to the land is not shown. Had the obligation been executed to Thompson and Drennen jointly, and a valid and sufficient conveyance, without the assent of Thompson,, been executed to Drennen conveying to to him all the land, it would not have been a compliance with the condition of the bond.

We are of opinion that there is no error in the judgment of the circuit court and the same is therefore affirmed.