Robinson v. Harbour. mistaken view of the cases of Gibson v. Newman, 1 How. 341, and Coleman v. Rowe, 5 id. 460. In the case of Gibson v. Newman, the vendee of a lot of ground in the city of Vicksburg executed his note for $1,800, payable in three annual installments, and the vendor agreed to make him a good title to the lot. But there was no time fixed for the making of the title; and for that reason, the covenants of the parties were independent covenants, and were very properly so declared by the court. And the report of the case of Coleman v. Rowe is very unsatisfactory, as it does not show when the bill was filed — whether on the maturity of the first installment, or after all the installments had become due, and seems to have been founded on the case of Gibson v. Newman, which, as we have shown, does not sustain the doctrine enunciated in the cases of Clopton v. Bolton and McMath v. Johnson. Where the vendee of lands covenants to pay for the same by installments, and the vendor covenants to make him a title when the last installment is paid, the covenants of the vendee to pay the installments, except the last one, are independent covenants. But the covenant of the vendee to pay the last installment and the covenant of the vendor to make title are dependent covenants; and to entitle either of them to maintain an action against the other, he must aver and prove performance, or tender or offer of performance, of his part of the agreement. The payment of this installment of the money, and the making of the title, are concurrent acts of the parties, to be done or performed at the same time, and are therefore dependent covenants. This rule is sustained by reason and authority, and accords with the justice of the case and the intention of the parties. Suppose the whole of the purchase-money had been payable at once, instead of being payable by installments, and the stipulation had been to pay three thousand dollars in twelve months, the deed to be executed at the payment; upon this statement of the question, is there a doubt that the agreements would have been mutually depen lent and conditional? And what difference is there, whether the final payment is the whole or part? Where the whole of the purchase-money is to be paid at once, and the deed is then to be given, the covenants are held to be dependent, because it is unreasonable to presume that the purchaser intended to pay he whole consideration, without having the equivalent, in a title to the land Robinson v. Harbour. purchased. The same reason applies to the last installment. An obvious reason why the prior installments should be paid without having a deed is, that the vendor was to withhold the title, as a security for the purchase-money, and the vendee was content to rely on the vendor's contract for his future title; but no such reason applies to the final and complete payment of the purchase-money. Whether we consider the particular language, or the general intent of the parties, the covenants between them were mutually dependent and conditional, and the vendor cannot recover without averring performance or an offer to perform on his part. Kane v. Hood, 13 Pick. 281; Kunkle v. Johnson, 30 Ill. 328, 332. This court has repeatedly decided that the vendor of land, who has given bond to make title to the vendee on payment of the purchase-money, cannot maintain a bill for the specific performance of the contract until he has put the vendee in default by a tender of a deed. The covenants to make title and to pay the money are concurrent, mutual and dependent; and neither party can insist on a performance of the contract without an offer or tender of performance on his part; and this rule applies with equal force in law and equity. Mobley v. Keys, 138, an M. 677; Eckford v. Halbert, 30 Miss. 273; Alyce v. Broyles, : id. 524; and McAlister v. Moye, id. 258. Courts will construe covenants to be dependent, unless a contrary intention clearly appears. A party shall not be forced to pay out his money unless he can get that for which he stipulated. Stockton v. George, How. 172; Peques v. Mosby, 7 S. & M. 340, 347; Wadlington v. Hill, 10 id. 560; Bank of Columbia v. Hagur, 1 Peters, 455, and 2 Wend. 297. The cases of Leftwich v. Coleman, 3 How. 167, and Rector v. Price, id. 321, referred to in Me Math v. Johnson, do not support the doctrine laid down in that case. Upon reference to them, it will be found they were both cases of independent covenants. In the first case a note was given for land, payable on a day fixed, and before the time the deed to the land was to be executed; and, in the other case, there was no time fixed for procuring the deed, which was the consideration of the note sued on in that case. The case of Me Math v. Johnson was correctly decided upon the facts of the case. But it lays down a doctrine to which we cannot give our assent, and relies upon the case of Clopton v. Bolton as an authority conclusive to show that the covenants of an agreement Robinson v. Harbour. are all independent, where the conveyance is to be made upon the payment of the last installment of the purchase-money. In that case the court say: "On the one part, there were instruments for the payment of the purchase-money at several different periods; on the other, an obligation to make title upon full payment of the purchase-money. Suppose the suit had been brought as soon as the first installment fell due, would it be contended that the plaintiff should make a deed before he could recover that installment in the face of his obligation to make title when all the money was paid? Clearly not. This shows beyond doubt that the covenants were intended to be independent." With all due respect, we think this is a non-sequitur, a conclusion not warranted by the premises. The fact that some of the covenants in an agreement are independent does not necessarily render others so. Grant v. Johnson, 1 Seld. 247, and Babcock v. Wilson, 5 Shep. 372. The case of Clopton v. Bolton was an action on two writings obliga. tory, payable twelve and twenty-four months after date, given for the purchase of a tract of land. The defendant pleaded that fact, and that the plaintiff, at the time of the contract, executed a hond to make title when the purchase-money should be paid; and that the plaintiff did not, before the bringing of the suit, tender a deed to the defendant for the land. The court decided that the covenants were independent, and that the failure to tender the deed constituted no bar to the action. It has been held that a covenant to pay a certain sum of money, one-half on a certain day, and the other half on a certain subsequent day, at which time the covenantee was to execute and deliver a deed, so far as respects the first payment, is independent, but, as to the other, is dependent; and, in an action thereon, the tender of the deed must be averred. So, in a declaration for the whole sum, after both installments have become due. Biddle v. Corgell, 3 Har. 37%, and Leonard v. Bates, 1 Black. 172. In contracts where either party might be compelled to part with his money or his property, without receiving the stipulated equiva lent, the latest and best action of the courts has been to hold that the party seeking to enforce the contract must make his own part of the agreement precedent, and allege either a performance or a tender and refusal. Wadlington v. Hill, 10 S. & M. 562. And a mere offer to make a deed and averment of readiness at all times to make it. will not do. Klyce v. Broyles, 37 Miss. 524. Robinson v. Harbour. This principle applies in all cases to the last installment where the vendee gives the vendor his notes to secure the payment of the purchase-money, payable at different times, and takes from the vendor a bond for title when the money or last installment is paid. For it is not to be presumed that the vendee intended to pay his money without receiving the stipulated equivalent in a title to the land purchased, nor that the vendor intended to part with the title to the land sold, without receiving the money. The conveyance and the last payment were intended to be simultaneous acts. We have arrived at the conclusion, that, in this case, the covenants between the assignor of the appellee and the appellant were dependent covenants, and that the appellee could not maintain his bill without averring and proving a performance of the covenant on the part of the vendor, or tender or offer to perform, before the filing of the bill. The averment in the bill that the assignor of the note is ready and willing to execute a deed on payment of the purchasemoney is not sufficient to sustain it. And for this reason, we think the court below erred in overruling the demurrer to the bill. SHACKELFORD, C. J., dissenting, declines to write a dissenting opinion, but refers to the case of Bowen v. Bailey, for his views on the question decided in this opinion. The decree must be reversed, the demurrer sustained, and the bill dismissed. CASES IN THE SUPREME COURT OF TENNESSEE. SMITH, plaintiff in error, v. BRAZELTON. (1 Heiskell, 44.) Trespass-Belligerent rights. In an action of trespass for inducing confederate soldiers to cut and tak plaintiff's timber, etc., it appeared that the plaintiff and defendant owned adjoining farms; that during the war the surrounding country was at times occupied by the confederate army, which, on one occasion, cut a large amount of valuable timber from plaintiff's farm, and took and used other of his pt.perty at the suggestion and by the advice, as was alleged, of the defendant, who sympathized with the confederate cause. Held, that the cutting of the timber and taking of the property being by virtue of belligerent rights, the plaintiff could not recover. Held, further, that the belligerent rights of both parties to the war were the same and equal in extent. DECLARATION in trespass. The parties were the owners of adjoining farms, near the town of New Market, in Jefferson county. In December, 1863, a force of rebel soldiers under the command of General Vaughn, encamped for two or three days, and cut timber, upon the land of defendant in error. In January or February, 1864, a brigade of rebel soldiers under command of Gen. Longstreet, also encamped for about three weeks, and cut timber off said land. The place of encampment was a convenient one, and had been used at different times by troops belonging to the federal and rebel armies. The land, consisting of about ten acres, was very valuable on |