On the part of the Defendant the case of Sumner v. Powell (a) was cited to impeach this doctrine. The question there was, whether a covenant joint in its form should be construed as joint and several. That case, however, only decided that the terms of the instrument must prevail where there is nothing to lead to a construction different from the ordinary meaning of the words; and the judgment of Sir W. Grant assumes that where there are legitimate materials leading to a construction different from the ordinary meaning of the words used, the Court may construe the words accordingly; as in the instance of a joint bond given for a prior liability which was joint and several. It is to be observed, moreover, that where the evidence to put such a construction upon the words is to be found in the instrument itself, it is much more safe and satisfactory than whereas in the case of joint bonds construed to be joint and several the evidence is sought for in the circumstances and situation of the parties. In this case, then, we have the agreement recited: the consideration is marriage; the object is to provide for the wife, and to advance the husband, who is the son of the covenantor. One event only is mentioned as that upon which the liability is to arise, namely, the marriage. Upon that event taking effect, Lloyd the elder is to pay 2007., and to settle and convey his estate "in the manner, to the uses, and upon the trusts after mentioned," not upon any conditions or contingencies after mentioned. With respect to Lloyd's covenant, there is no distinction, as to him, between his contract to pay the 2007., and to convey the estate of Tyn-y-Pwlly ; whereas, with respect to Stephens's covenant, he is to pay 1007. upon the marriage, and to settle the half of the (a) 2 Mer. 50. estate 1837. LLOYD v. LLOYD. 1837. LLOYD v. LLOYD. estate of Glandead "at the time after mentioned," which upon his daughter attaining twenty-one. is So far then the contracts by Lloyd and by Stephens are perfectly distinct and independent. Lloyd is to convey his estate upon the marriage; Stephens, not until afterwards, when his daughter attains twenty-one; and accordingly Lloyd's estate is to be settled to uses which are to commence even before, but certainly " from and after the marriage," while, with respect to that of Stephens, there is no such provision. All this leaves no doubt of the intention of the parties. But then the covenants, by Lloyd and by Stephens, are each in terms made to depend upon the performance of the covenant by the other. Lloyd's obligation, which is to be performed upon the marriage, is made to operate only in case Stephens shall perform his, which was not capable of being performed till some time after the marriage; and in the same manner Stephens's covenant is made to depend upon the performance of Lloyd's; so that Lloyd's act is to precede Stephens's, and Stephens's to precede Lloyd's. It was argued, indeed, that both were to be simultaneous; but this would be doing as much violence to the words as is required in order to make them consistent with the intention of the parties as declared in the recital. These provisions cannot be carried into effect according to the letter of the terms used; but the intention of the parties is sufficiently expressed. The words used must therefore yield to the declared intention. I am of opinion that Lloyd's liability to settle his estate was not removed by the failure of Stephens's covenant to settle his, and that the decree of the ViceChancellor is therefore correct. 1837. THIS SOUTHBY v. HUTT. HIS was a suit instituted by the vendor of an estate which, in the month of May 1833, was sold by auction in a great number of lots, for the purpose of enforcing a specific performance of his contract against the purchaser of certain of the lots. Feb. 2, 3. 15. By condiit was stipulated that an estate tions of sale the vendor of which was the title to the and deduce a part of the quired under The main question in the cause was whether, upon the true construction of the conditions of sale, the Plain- purchasers, tiff was or was not relieved from the obligation of verifying the abstract of his title by producing, for the inspection of the Defendant or his solicitor, the several documents mentioned in the abstract, or by other satisfactory evidence. A subordinate question was, whether, if that point should be decided against the Plaintiff, the Defendant had not, by his subsequent conduct, and upon the result of the dealings and correspondence which had taken place between the respective solicitors of the parties, waived all objection to the title. an inclosure, he should not be bound to shew any title thereto prior to the award; and it was farther stipulated that the vendor should deliver up to the The conditions of sale, so far as they were material to largest purthe question between the parties, were the following:-value all the "4th. The vendor will, at his own expense, deliver an abstract of the title, to the purchaser, or his solicitor, of chaser in title deeds and other documents in his custody, but should not the be required to produce any original deed or other documents than those in his possession and set forth in the abstract: Held, on the construction of these conditions, that they did not relieve the vendor from his liability to verify the title shewn upon the abstract by producing the title deeds themselves, or, if any of them were not in his possession, by other satisfactory evidence. If a vendor intends to deprive a purchaser of the right to the production of any evidence necessary to verify the title beyond what the title deeds in his own custody will supply, he is bound to make that intention previously known to the purchaser in clear and explicit terms. 1837. SOUTHBY v. HUTT. the first seven lots, and lot 53., within twenty-one days from the day of the sale, and deduce a good title; but as to such parts of the land as were allotted or taken in exchange under the award of the commissioners of the Appleton inclosure, the purchaser shall not be at liberty to require, and the vendor shall not be bound to shew, any title thereto prior to the said award, from which period the title to such lands will be deduced. The purchaser shall, within the next twenty-one days after the delivery of the abstract, declare in writing, his acceptance or disapproval of the title, after which he is to be precluded from raising objections: and in case objections are made within that period, the vendor shall be at liberty to vacate the sale, upon returning the deposit with interest, auction duty, or other further compensation. "5th. That upon payment of the remainder of the purchase-money, on or before the time above mentioned, the vendor will convey the premises to the respective purchasers, who 'are to be at the expense of preparing their own conveyances. "6th. The vendor will deliver up, to the purchaser of the greater part in value of the said estates, all the title deeds and copies of deeds, and other documents in his custody, but shall not be bound, or required, to produce any original deed, or other documents than those in his possession and set forth in the abstract, or which relate to other property; and such purchaser is to enter into the usual covenants for the production of the title deeds to the purchaser or purchasers or proprietor of the remaining or other lots; but if the largest portion in value of the estate shall remain unsold, the vendor shall be entitled to retain the deeds, upon entering into such covenants; all such covenants to to be prepared by and at the expense of the person or persons requiring the same, who may have attested copies of such deeds at his or their own expense." The decree of Lord Langdale, made upon the hearing of the cause at the Rolls, declared that the Defendant was not entitled to have the abstract of the title verified, except so far as the Plaintiff could verify the same by the production of the deeds and other documents in his possession; and that subject to the Plaintiff's procuring the execution of a certain deed of release (the purchaser's right to which had not been disputed), the Defendant was bound to accept a conveyance of the estate, and should pay the costs of the suit. The Defendant appealed from his Lordship's decree. Mr. Wigram and Mr. R. Perry, in support of the decree. Mr. Tinney and Mr. Bagshawe, for the appeal, referred to Deverell v. Lord Bolton (a), Freme v. Wright (b), Sir E. Sugden's Treatise on Vendors and Purchasers (c), and also to the judgment of Lord Lyndhurst in Dick v. Donald. (d) The material facts of the case, and the principal arguments urged in support of the decree, are stated and considered in the judgment. 1837. SOUTHBY v. HUTT. (a) 18 Ves. 505. (b) 4 Mad. 364. VOL. II. Р The (c) Vol. i. pages 224. 368. 449. 530. 9th ed. (d) 1 Bligh, 655. N. S. |