[*449] ported cases it appears that the purchaser had paid, in Chap. XVII. one case all, and in the other part, of the purchase-money; *but although this was in some degree relied on in the earlier, it does not seem to have been considered material in the later, of the two decisions; but if, after the contract is clearly abandoned, he retain possession, he will be liable in respect of such subsequent occupation.(t) But the purchaser when let into possession, (unless under an agreement to quit in some specified event which has happened,)(u) cannot be ejected without notice.(w)[1] (3.) Plaintiff how far bound to perform his part of the agreement before action. of contract to support As a general rule, the mutual engagements of the par- Performance ties will be considered dependent on each other; and on part of plaintiff how either must, (unless discharged therefrom by the other,)(x) far necessary perform his liabilities before he seeks to enforce his rights action." under the contract. So that, on the one hand, the purchaser cannot sue upon the agreement without tendering the conveyance,(y) and the sum, (if any,) due in respect of the purchase-money and interest ;(≈)—(unless the vendor have neglected to furnish or verify(a) his abstract of title, or have shown a bad title,(b) or, by conveying away (t) Howard v. Shaw, 8 Mee. & W. 118. (u) Doe v. Sayer, 3 Camp. 8. (w) See 1 M. & W. 700; Right v. Beard, 13 East, 210; and see Doe v. Caperton, 9 Car. & P. 112; Doe v Chamberlaine, 5 Mee. & W. 14. (t) See Jones v. Barkley, Doug. 659; Laird v. Pim, 7 Mee. & W. 474; if the agreement is by deed, the discharge must also be under seal; see 19 L. J., N. S., Exch. Ch. 328. (y) See Knight v. Crockford, 1 Esp. 190. (z) Sug. 375. (a) See Berry v. Young, 2 Esp. 640, n. (b) See Seaward v. Willock, 5 East, 202. [1] But as the possession is in these cases lawful, being with the assent of the seller, an ejectment will not lie against the purchaser without a demand of possession, and refusal to quit; unless upon possession being given to him, he agreed to quit possession if he should not pay the purchase-money on a given day, or the like; in which case an ejectment will lie without notice, on non-performance of his agreement. The agreement operates in the same manner as a clause of re-entry, on breach of covenant in a lease, Chap. XVII. the estate(c) or otherwise,(d) have disabled himself from completing the contract :)—and, on the other hand, it has been held that the vendor, if he sue merely upon the [*450] *agreement and not upon some security which he has taken for the purchase-money, (e) must have executed, or offered to execute,(f) or, according to a modern decision,(g) have been ready and willing to execute a conveyance in the terms of the contract; the rule, in the absence of stipulation, being, that the purchaser must prepare and tender the conveyance.[1] But, of course, the contract may be so worded as to show that the mutual stipulations were, to a certain extent, independent; it being a general rule, that if a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be (c) Lovelock v. Franklyn, 8 Q. B. R. 371; Knight v. Crockford, 1 Esp. 190. (d) See Caines v. Smith, 15 M. & W. 189; Short v. Stone, 3 Dow, & L. 580; S. C., 8 Q. B. 358. (e) See Moggridge v. Jones, 14 East, 486; Spiller v. Westlake, 2 B. & Ad. 155. (f) Phillips v. Fielding, 2 H. Bl. 123; Laird v. Pim, 7 M. & W. 474. (g) Poole v. Hill, 6 M. & W. 835, 841; and see Chitty on Contracts, last ed. 273, and Thames Haven Company v. Brymer, 19 L. J., N. S., Exch. Ch. 321; but see Sug. 261, where Poole v. Hill is not cited. [1] In this country, the party who is to give the deed, has the same drawn at his own expense; but under a covenant to convey, he is not bound to prepare the conveyance, until the party who is to receive it, is in a situation rightfully to demand. And after such demand the grantor is allowed a reasonable time for drawing and executing it; and he is then to hold it ready for delivery when called for, and is in no default until a second demand is made. The purchaser nevertheless, may prepare the deed, and tender it for execution-and then only one demand is necessary. Fuller v. Hubbard, 6 Cowen, 1; Connelly v. Pierce, 7 Wend. Rep. 129; Wells v. Smith, 2 Edw. Ch. Rep. 78. Where the vendor covenanted, that upon payment of the purchase-money, he would give a title to the purchaser; held that he was bound to prepare and tender the deed of conveyance. But if the purchaser deny having made the purchase without other objection, this was held to dispense with a tender of the deed, for it would be a nugatory act for the vendor to tender a deed, which the purchaser toid him he would not accept. Sweitzer v. Hummel, 3 Serg. & Rawle Rep 228; Hampton v. Spochenagle, 9 Serg. & Rawle, 212. brought for the money, or for not doing such other act, Chap. XVII. before performance: for it appears that the party relied on his remedy, and did not intend to make the performance a condition precedent :(h) for instance, where a vendor agreed that he would, within one month from the date of the contract, or from being required so to do, deliver an abstract of title and deduce a clear title, and the purchaser agreed to pay part of the purchase-money down, and the residue on or before four years after date, with interest payable half-yearly on certain fixed days, it was held, that the vendor could sue for interest which had become due, although no abstract might have been delivered. (i)[2] *And an actual refusal by the vendor to execute the conveyance, has been held to be no defence at law to an ac and (h) Pordage v. Cole, 1 Wms. Saund. 320 b, n.; see 6 C. B. 114; Mattock v. Kinglake, 2 Per. & Dav. 343; Porcher v. Gardner, 14 Jur. 43; Thames Haven Company v. Brymer, 19 L. J., N. S., Exch. Ch. 321, 328. (i) Dicker v. Jackson, 6 C. B. 103, 114; and see Sibthorp v. Brunel, 3 Exch. 826; and, in equity, Lloyd v. Lloyd, 2 Myl. & Cr. 192. [2] In agreements for purchase, the covenants are construed according to the intent of the parties, and they are therefore always considered dependent, where a contrary intention does not appear. The true rule is that it is not the employment of any particular word which determines a condition to be precedent, but the manifest intention of the parties. The old law is said to have been in favor of the contrary doctrine. But it has been well said, that if the courts were to hold otherwise than they now do, the greatest injustice might be done; for supposing, in the instance of a trader who had entered into a contract for the sale of an estate, that between the making of the contract, and the final execution of it, he were to become a bankrupt, the vendee might be in the situation of having had payment enforced from him, and yet be disabled from procuring the property for which he had paid. If therefore, either a vendor, or vendee, wish to compel the other to observe a contract, he immediately makes his part of the agreement precedent; for he cannot proceed against the other without an actual performance of the agreement on his part, or a tender and refusal. See Quackenboss v. Lansing, 6 Johns. Rep. 49; Barruso v. Madan, 2 Johns. Rep. 142; 10 Johns. Rep. 204; Obermyer v. Nichols, 6 Binn. 159; Bennet v. Pixley, 7 Johns. Rep. 249; M Millan v. Vanderlip, 12 Johns. Rep. 165; Jennings v. Camp, 13 Johns. Rep. 94; Green v. Reynolds, 2 Johns. Rep. 207; Jones v. Gardner, 10 Johns. Rep. 266; Galey v. Price, 16 Johns. Rep. 267; Hardin v. Kretsinger, 17 Johns. Rep. 293; Robb v. Montgomery, 20 Johns. Rep. 15; Ramsay v. Brailsford, 2 Des. 582; Porter v. Rose, 12 Johns. Rep. 209. [*451] vendor to Refusal by convey, no tion by him upon a note or other security given by the purchaser for the purchase-money.(j) It seems to be the better opinion, that, even where there is no condition respecting the forfeiture of the deposit, and the purchaser by his own default loses his right to enforce the contract, he has no right to recover his deposit, and will not acquire such right by reason of the estate being subsequently sold by the vendor.(k) (4.) As to the agreement ;-how affected by parol evidence. We have already considered (1) what is a sufficient agreement within the Statute of Frauds: we may here remark, that the doctrine acted upon in courts of equity as to parol agreements being taken out of the statute by part performance, is not recognized by a court of law. (m)[1] ́ (j) Moggridge v. Jones, 14 East, 486; but see the remarks of Parke, J. in Spiller v. Westlake, 2 B. & Ad. 155, 157. (k) See Sug. 41; but see Palmer v. Temple, 1 Per. & Dav. 379. (m) Sug. 140. [1] The same general rule prevails in equity, as at law, that parol evidence is not admissible to contradict, qualify, extend, or vary written instruments, and that the interpretation of them must depend upon their own terms. But in cases of accident, mistake, or fraud, courts of equity are constantly in the habit of admitting parol evidence to qualify and correct, and even to defeat, the terms of written instruments. So they will allow parol evidence to re-but a presumption, or an equity arising out of written instruments. But in these latter cases, they do not interfere with, or repel the proper construction of the instrument itself, but only the artificial rules of presumption, or of equity which they themselves have created or applied, to cases perfectly indeterminate in their nature and admitting of either construction, according to the real intent of the party. 2 Story's Eq. Juris. sec. 1531. The general rule is, that parol evidence cannot be admitted to contradict, explain, or alter a written agreement: but may be received to prove fraud, mistake, usury, or surprise in the execution of it. M Mahon v. Spangler, 4 Rand. 51; Pooser v. Tyler, 1 McCord's Ch. Rep. 18; Gibson v. Watts, 1 McCord's Ch. Rep. 490; Holmes v. Simons, 3 Desau. 149; Lloyd v. Ex'rs. of Inglis, 1 Desau. 333; Anderson's ex'r. v. Bacon, 1 A. K. Marsh. 50; Fishback v. Woodford, 1 J. J. Marsh. 86; Love v. Cafer, 1 J. J. Marsh. 327; Williams v. Beazley, 4 J. J. Marsh. 580; Thompson v. Patton, 5 Litt. 74; Dwight v. Pomeroy, 17 Mass. Rep. 303; Bradbury V. The contract, as originally entered into, cannot, at law, Chap. XVII. White, 4 Greenl. 391; Meads v. Lansingh, Hopkins, 124; Wesley v Tho- No parol variation of |