
    Dorsey vs. Smith.
    June, 1826.
    A, by will, devised his retd estate to bis wife S for life, and after her death to bis brother C, in fee, charged with the payment of £300 to each of his two sisters, to be paid in one year after C took possession of the estate. After the death of A, bis widow S, the tenant for life, married D in 1812. In 1814 1) entered into a written contract wi*h C, the remainder-man, by which (' agreed to sell him all his interest in the estate for §10,000, payable in three equal annual payments, the first to he paid the 25th Dicem* ber in the same year, and all, except §2,800 bearing interest till paid. I) was to give bond, with security, for the payment of the purchase money in manner before mentioned, andón payment thereof, C was to execute a conveyance of the land to 1) in fee. Endorsed on this contract was this agreement — “It is understood that the legacies, charged by the will of A, to be paid out of his real estate, are not to be satisfied by I), but that the land Is to be exonerated by C, from the payment theieof " The first instalment under the contract was paid by I), and bond with security' given for the balance. On this bond judgment was rendered at law against D, one of the legacies charged upon the estate being still outstanding, and the other having been purchased by D. A bill was then filed by' D, praying an injunction to stay proceedings on the judgment. After the filing of the hill, the outstanding legacy was purchased by C,
    
      Held, 1. That the true construction of the agreement endorsed on the contract of purchase between I) & C, was that the estate itself was to be freed from all liability to pay' the legacies with which it was charged, and not mere.lv that 1) was tobe personally indemnified from their payment; and that though it was an agreement which C might have some difficulty in complying with, it was not an impossible one, and that he was bound to perforin it before be could call on D for the whole purchase money.
    
      Held, 2. That as the money was tobe paid in instalments, and the said agreement was in general terms that the land was to he exonerated from the outstanding legacies, C had, until the last instalment became due, to comply with the agreement; and that therefore, upon tile instalments, which fell due before that, time, D was bound to pay interest, although the legacies were not discharged, having by bis contract expressly agreed to pay interest. That D could not have relieved himself from the payment of this interest unless he had actually tendered the amount clue.
    
      Held, 3. That upon the last instalment interest could not be charged for the whole time, as the legacies were still outstanding, and C refused to exonerate the bond from their payment, supposing that he was not bound to do so, but merely to give I) a personal indemnity against them. That it would however be otherwise, and interest might be charged, if IJ could be considered as having taken possession under bis purchase, or to have been in the reception of the rents and profits of the estate sold.
    
      Held, 4. That D was to be considered as only' the purchaser of a dry remainder, there being a tenant for life, in possession.
    
      Held, 3. That the wearing out of a life-estate, in a case of this kind, is not, os a general rule, equivalent to the taking of the profits so as to charge the purchaser of the remainder with interest, unless the purchaser has ■ himself been in default, and the delay in the completion of the contract has been owing to such default.
    
      Held, 6. That when C purchased one of the legacies he was entitled to a part of the last instalment, and to interest upon it, from the time of such purchase.
    
      Held, 7. When an instrumentary witness resides out of the jurisdiction of the court, so as not to be amenable to its process, or cannot be found after diligent enquiry, the proof of his hand-writing is evidence of every thing on the face of the instrument.
    
      Held, 8. That D was not entitled to be credited for the legacy bought in by him, with what he paid for it, but only with its fair value at the date of the purchase; and that that value was to be estimated by analogy to the rule adopted in the court of chancery in this state, for ascertaining a woman’s allowance in lieu of dower in land sold under a decree of that court, and not by a reference to Dr. Halley’s table of observations.
    
      Held, 9. That each party, being in some respects in default, was to pay his own costs in the court of chancery.
    Appeal from a decree of the Court of Chancery. The facts of this case are sufficiently stated in the final decree of the chancellor. The bill, which was filed by the appellant, (and (S'. Chapman his surety, who is since dead,) against the appellee, on the 20th of December 1819, prayed an injunction to stay proceedings on judgments at law obtained by the appellee against the appellant, and his surety. The injunction was granted, and on a motion to dissolve it, on the coming in of the answer, the following decretal order was passed at July term,, 1820, by
    Kilty, Chancellor. The motion to dissolve the injunction, in this case, was fully argued at the present term, and the proceedings have been considered. The rule recognized in the case of Colegate vs. Lynch, 2 Ilarr. ¡f Johns. 34, which was referred to, is considered a proper one, and has been since acted on; but it might be oppressive where the sum was small, and the party to be affected by it not in fault. In this case the credit claimed was $300, but it appears that $257 were credited, leaving only $43 to be further allowed, and it is not stated that Smith was called on to correct the mistake. There is, however, no occasion to rely on that rule, it being clear that the answer, and the exhibit referred to, do not constitute such a denial of the equity of the bill, as to entitle the defendant to a dissolution of the injunction. The equity of the bill arises on the agreement in writing exhibited, and more particularly on the addition thereto respecting the legacies. The court is not called on at this time to decide finally on the means by which the land is to be exonerated; but as the legacies are not to be satisfied by C. Dorsey, it would seem that he ought to be secured from the risk of his being hereafter obliged to satisfy them, even though he might eventually be repaid; and on this question the answer of the defendant, although taken as true in respect to the facts, cannot extend to change the terms of the written agreement, or to establish its legal meaning and construction.
    Commissions afterwards issued to take testimony, which was taken, and the cause set down for hearing, and then referred to the'auditor to state and audit the accounts. On the coming in of the auditor’s report, the following decree was pronounced by
    Johnson, Chancellor, (March term 1824.) Henry J2. Smith, by his last will, dated the 17th of July 1802, devised to his wife Dicandia Smith, “during her life, all the land whereon I now live, near and adjoining Benedict Leonard Town, in Charles county.” To each of his two sisters he bequeathed £ 175, and directed that so much of his personal property, as should be necessary, should be sold for the purpose of paying those legacies. To his wife, charged with the legacies, he gave all his personal property. The remainder, after the death of his wife, in the land devised to her for life, he gave to his brother Charles S, Smith, the defendant, in fee, charged with the payment of the sum of J3500 to each of his two sisters, Margaret, and Mary Wheatley, to be paid “in one year after my brother enter into the possession of the above land;” that is, in one year after the death of his wife, to whom the life-estate was given. On the death of the testator his widow possessed the property, and in the year 1812 intermarried with Clement Dorsey, one of the complainants.
    On the 13th of March 1814, Dorsey entered into a contract with Smith for the purchase of his remainder in the land, inaccurately termed his “reversionary interest.” By ¡he agreement in writing signed by the parties, Smith “sells, and here* by agrees to sell unto the said Clement Dorsey, and his. heirs, all his reversionary interest, (being a fee simple in and to that tract or parcel of land devised by a certain Henry «#. Smith, lately deceased, to his wife Dicandia Smith, now Dorsey,) to and for the price of ten thousand dollars, payable in three equal annual payments; the first whereof to be paid on the 25th of December in the present year, and all of which money, except the sum of two thousand eight hundred dollars, bearing an interest from the date hereof till paid; and upon payment of which said purchase money, with the interest, the said Smith or his heirs, is to execute to said Dorsey a deed or release in fee simple; 'and the said Dorsey agrees to pay him the said money, with interest thereon as aforesaid; and further to execute to the said Smith, with Philip Stuart, or such security as Smith shall approve, a bond conditioned for the payment of the money as aforesaid, with interest thereon as aforesaid.” On the agreement is the following endorsement signed by Dorsey and Smith: “It is Understood that the legacies charged by the will of Henry A. Smith to bes paid out of his real estate, are not to be satisfied by C. Dorsey, but that the land is to be exonerated by Charles S. Smith from the payment thereof.” The controversy between the parties principally arises from this endorsement. The first instalment wa's paid.
    On the 23d of March 1815, in pursuance of the stipulation that bond with approved security should be given for the purchase money, Dorsey, together with Samuel Chapman,- the other complainant, executed a bond to Smith, conditioned to .pay the sum of $6,666y as follows: $3,333$, with legal interest on the sum of $4,888 89, from the 25th of December 1814, on or before the 25th of December 1815; and the further sum of $3,333$, being the residue thereof, with interest on $2,444 44, from the. 25th of December 1815, on or before the 25th of December 1S16.
    In the very commencement of the dealing between Dorsey and Smith, the instruments of writing, intended to meet the engagements of the parties, appear so inaccurately or hastily drawn, that there iá nothing surprising in finding a difference of .opinion as to their true character and effect. In the original 'agreement, instead of stipulating that all the money, except the the sum of $2,666*, (that being the ¿01000 legacies charged on the laud,) bearing an interest from the date of the agreement, the whole, except the sum of $2,800, is to bear interest — a plain and manifest mistake. And the bond executed by Dorsey and Chapman varies most materially from the contract, under which-the bond was given, with the intention, so far, of executing that contract.
    As early as the 14th of April 1815, it appears that a difference of opinion existed as to the true meaning of the original contract, so far as related to the sum of money exempted from interest on account oí the legacies; the one, Smith, contending that one third of that sum was to bo paid as the instalments became due; the other, that no part of that sum was to be paid until the last payment. The subject matter of this difference, they referred to the decision of a mutual friend; no opinion, however, appears to have been expressed by him. On the same day the error in the bond having been discovered, by an endorsement thereon signed by Smith, he agreed that “the condition of the preceding bond may be defeated by the following payments, to wit; $3,333$, with interest thereon from the 13th of March 1814, on or before the 25th of December 1815, and the further sum of $3,333$, with interest on $666 |., from the 13th of March 1814, on or before the 25th of December 1816.
    In the fall of 1815, when the second payment was becoming due, tiie hill alleges that Smith in a conversation with Dorsey, expressed his apprehensions of bank paper, when Dorsey asked him if he would take good bonds. This he refused; but subsequently informed Dorsey he would take bank notes, which were obtained, and then Smith refused to accept them; and Smith, on being told by Dorsey he could not afford to keep so much money by him, appeared to assent to a proposition made by Dorsey, that he must wait until the money was raised from his crops. Other grounds for relief are set forth in the bill, not deemed material to be mentioned. The great obstacle to a settlement by the parties, was the legacies charged on the land; and after various letters passing between the parties, the one insisting that the land must be exonerated from the legacies previous to the payment of the purchase money, the other the reverse, ultimately one of the legacies was purchased by ' 
      Dorsey. Suits Were brought OH the bond, judgments in Charles cotmty court obtained', which were removed to the court of appeals, and there affirmed at June term 1819.
    ■ On the- 20th of December 1819, the present bill was filed, and injunctions obtained, which were Continued by my predecessor, on the motion to dissolve.
    
      Smith, in his answer, denies most of the equitable grounds relied oñ by the complainants for the interposition of this court, except that he admits' two payments, one of $300, and the other Of $900, which do nót appeár to be credited on the judgments; although there is nothing in the cause by which it appears that credit for them was ever" refused.
    Since the filing of the bill, Smilh has purchased thé other legacy which was charged on the land.
    'After the argument of the cause an interlocutory decree passed, directing the auditor to stats accounts' in various ways;- and iñ that decree it was remarked, “as the merits of the cause' have b'eeri fully argued, there will be rio necessity that further fitoe should be spent" by an argument on the report; the report is designed to enable this court, as well as the court of appeáls,(should the Case go before 'them,) finally to adjudicate on the subject By pronouncing a judgment in favour of the party- entitled for thé sum which may appear to be justly due. And that the" accounts may appeár in different forms,” it was ordered íhát an accotinf be stated crediting Dorséy with the paymeiifey disregarding his" Claim' for thé legacy, arid charging him with interest. A second account allowing, in addition' to the payments, the sum he gave for the legacy, excluding interest after thé páyments bécamé due. 'A third account including interest. A fourth account crediting Dorsey with such a sum on account of the legacy, as with the addition of seven years7 interest thereon, Will amount to $13334, or £500, including interest; and a a fifth account, fn conformity with the same rules, excluding interest; and such other account in such other way ás shall appeár to the auditor equitable and just.
    In pursuance of the decree the accounts have been stated-^* one of them- crediting Dorsey with the Sum the legacy was worth, according to thé calculations or table of observations by 13r. Halley, which are usually resorted to in order to ascertain the present value of a legacy made payable after the expiration of a life. The report and accounts having laid the usual time, the cause at this term stands for final decision.
    Several points arise in this case — First. Ought interest to-be charged, and from what time?
    
      Second. Is Dorsey entitled to a credit on account of the legacy charged on the land; and if so, to what amount; that is. ought he to have credit for the price at which he purchased it, or for its real value at that time? And
    
      Third. How should the costs be taxed?
    In respect to the first poi nt. It appears to me perfectly unimportant to enter into a historical account respecting interest; for although at one time it was not allowed, yet that period has long since, in Great Britain, and this state, passed by. Nor is it of consequence whether the interest be considered a part of the debt, or a consequence proceeding from it; and it is equally unimportant whether interest be allowed by way of damages, or for the use or forbearance of money. Nor is it material to the ease under consideration, that there are instances in which interest is not allowed; the question is, is the present .a case in which it ought, or ought not to be charged?
    I shall consider the question, first on principle; and second, fey the authorities. One of the ancient reasons for excluding interest has long since been exploded, to wit, that it should never be permitted, because money could not produce money. The reverse of this is most true, for nothing can more readily produce money, than money itself; for if a person is fortunate enough not only to have money sufficient for his ordinary demands, that is for the comfortable accommodation of himself and family, but also a surplus, unless that surplus is permitted to lay idle, locked up in his chest, or be injudiciously employed, he will soon find it the most profitable fund he could possess. If you refuse interest on the ground that money cannot produce money, you might as well refuse to the owner a compensation for any other property of which he is deprived, or which is withheld from his possession. Land itself unemployed, or injudiciously used, will never produce money; the labour, industry, and attention of man, must be exercised before its produce can be turned into cash — without labour it must forever remain ■unproductive; and yet, if the land be wrongfully detained, whether it be productive or not in the possession of the wrongdoer, he is bound to account to the true owner for what it might have produced had it been advantageously or judiciously managed. The same reasoning applies to every other species of property, the possession whereof the true owner is deprived; and as long as money, by being employed, can command an interest sanctioned by the laws of the country in which it is, so long is he, who withholds it from the proprietor, bound to pay an interest, whether the money be used or permitted to be idle. It is sufficient that the creditor, or true owner, has been deprived of receiving, and of course from using it.
    But in the case now before the court, the parties, by their .solemn agreement, have expressly stipulated that interest should be paid on the whole amount of the purchase money, except .on the sum of $?,866-|, from the date of the original contract — ■ the bond and its defeasance endorsed thereon renew the stipulation. The parties, men of intelligence and information, fully apprised of the nature of the interest in the land, which was sold by the one and purchased by the other, fix on its value. It never entered into their minds that the sum of $10,000, agreed to be given, and to be received, was the value of the land if the remainder had taken effect in possession; in other words, if the life-estate had terminated. No doubt, if the purchase money was not to bear interest, a sum equal to the interest, when the payments became due, would have been added to the price agreed on. But, no objection against interest being paid, arises from the contracts themselves; that it ought not to be paid, is insisted on by the complainants, inasmuch as the defendant, on account of the outstanding legacies, was never able to comply with his part of the contract.
    This leads to an inquiry into the true construction of that contract. It is contended, on the part of Dorsey, that it was incumbent on Smith, before he could equitably claim Ihe purchase money, to take up the legacies, or obtain a release from the legatees to free the land from its responsibility. Smith in his answer, expressly states, that those legacies had for sometime been an obstacle to a contract between them, and that he agreed to take so small a sum as $10,000 for his interest, on the-ground that ho might have the use of the money some considerable time before he could be called on to pay them; that he was always willing to indemnify Dorset/, and would have done so, but that he insisted, after the contracts were made, and before he would pay, on the previous removal or raising of the legacies, which was contrary to the previous understanding of the parties.
    Ey the original agreement, not one word is mentioned respecting the legacies. The $10,000 were to be paid in three equal payments, and although $£,666 66, a part thereof, were not to hear interest, yet, in order to make the payments equal, the contract appears to require that one third part of that sum should have been included in each payment, and not to be re-, tained for the last. A different interpretation would make the payments unequal, contrary to the express stipulation of the instrument. As the legacies were known to he a charge on the laud, Dorsey would have been hound to pay them when they became due, or rather, the land in his hands, or of those claiming under him, must have been responsible — the $10,000 would have been the price for the remainder cum on ere. If it had been the intention of the parties that the legacies should he removed before the payment of the whole or any part of the purchase money, it might easily have been so expressed; but so far from stating with precision how far the payments were to he influenced by them, not one word is said on the subject It may have happened from their having before been an obstacle to an agreement being closed.
    There is very little probability that any expectation was entertained that the legacies would become due before the purchase money for the remainder; but the contract expresdy points out, the respective periods of payments Except for what is termed by the parties the ££rider,” no doubt could exist on the subject. The first subject of difference between the parties was not the legacies, but Iho $2,666 66, whether that sum should be equally paid, as the instalments became due, or reserved to the last.
    To remove the necessary inference tint the remainder in the 'and was purchased subject to the legac’es, the endorsement signed by the parties is attached to the written agreement- — -££T is understood that the legacies charged by the will of Henrif Jl. Smith to be paid out of his real estate, are not to be satisfied by C. Horsey, but that the land is to be exonerated by Charles S. Smith from the payment thereofIt does not appear to me that this endorsement to the original agreement demanded that the legacies should be taken up before the purchase money for the remainder was paid. It was not in the power of Smith to compel the legatees to release them, or to part with them, nor until they were discharged was it in his power to clear the land from being charged with the payment, and of course it was not in his power to exonerate the land he had sold “from the payment thereof.” But it may have beeii in his power effectually to free Dorsey from any real danger of being forced to pay them. If Smith had insisted on the payment of the whole purchase money, without first giving an adequate indemnity, the sufficiency whereof this tribunal might have been resorted to to determine, he would have been restrained from enforcing the payment. If Dorsey had paid the second instalment, and refused to pay the third, insisting on his right to retain at least as much of that pa}nnent as would be sufficient to meet the legacies, he would have been protected by this court; and unless full and complete indemnity was offered, Dorsey would have been suffered to retain the #3,666 66, paying the interest, or to bring that sum into court to be invested — the interest for the use of Smith — the principal to be paid to the legatees when due. This course would have done complete justice to the parties, and carried fully into execution their engagements. The legacies, therefore, in my opinion do not deprive Smith of his title to the interest.
    In respect to the allegations in the bill of Smith’s refusing to receive bank notes, doubting their solvency, and creating an impression in the mind of Dorsey of Smith’s intention to wait until the money could be raised by crops — again expressing a willingness to receive bank paper, which was procured at great inconvenience and loss, it might suffice to observe, that most of those allegations are denied in the answer; and that there is no proof that Dorsey ever procured or tendered the notes But if he had obtained the notes, and retained them by him ready at all times to pay on the removal of the legacies, or if he had ob t-ained specie in sufficient abundance, and retained it unemployed, yet unless he gave notice to Smith of having the money, and tiiai it was ready for him, and as to Dorsey remained unemployed, it would not free him from interest.
    'In the case of Powell vs. Martyr, 8 Ves. 116, the defendant purchased at auction — deposited part of the purchase money— the balance to be paid at a future date; where the purchaser was to receive the rents and profits. Objections arose as to the title, when a long correspondence took place, and after considerable delay the objections were removed. During the time of doubt respecting the title, the money was deposited with the vendee’s solicitor for the purpose of being paid when the objections were removed; and yet he had to pay interest; for according to the book, “it does not follow that the mere circumstance that the vendor was not ready to complete the title at the day will vary the rule. The purchaser must stale something more than mere delay, viz. that he has not had the benefit of his money; and m some way the vendor must have notice that the vendee has placed himself in that situation.” In Childs vs. Lord Jlbingdon. 1 Ves. jr. 04, the interest purchased was a reversion upon an estate for lives. One life only was remaining when the application was made to complete the purchase. Lrskine, Chancellor — “He must pa}’ interest. A man cannot purchase a dry reversion, and then lie by for years and expect to pay no more for it then, than if he had completed it immediately.” No case, it is believed, can be produced where the parties, perfectly apprised of the nature of the interest sold, (whether it was such as became or might become immediately productive to the vendee, or was what is termed a ury reversion, and therefore supposed unproductive,) stipulated to pay interest, has the interest been refused. In the present ease no rational doubt can arise, but that the nature of the estate sold was perfectly understood; and the contract, in respect to interest, speaks fin itself. My opinion is, therefore, that the vendee is to be charged with interest cm all the purchase money, except on $3,666 66, from the date of the oripjna)’ contract, to wi', ilie 12f,h of March 1814; on one third of that sum from the 35th ol December following; on one other third from the 25th of December 1815, and on the remaining third from the 25th ot December 1816.
    In respect to the second question. Is credit to be allowed for the legacy purchased, and for what amount?
    It is not very evident how much was paid for the legacy purchased by Dorsey from James Wheally, who is admitted to be entitled to one of the legacies charged on the land.
    By the rider, or endorsement on the original agreement, the ‘legacies are not to be satisfied by Dorsey.” If, therefore, he has undertaken to satisfy them, or purchase them, as between him and Smith, he is only entitled to their worth at the time of purchase, and not to their worth when they take effect in possession.
    According to calculations by which the extent of a widow’s dower in land when converted into money, and by which legacies directed to be paid after a life-estate, are regulated, the legacy purchased by Dorsey was only worth #560 22; indeed, by the English rule, only #349 06. But as that rule is founded on compound interest, on the principle that the interest Should (as there it may,) be immediately invested, although wé adopt the time at which it is most probable the right to receive the legacy will arrive, yet its value is not come at by compound, but simple interest; and by that rule Dorsey can only claim, in addition to the two payments, the sum of #560 22, according to the auditor’s statement in account No. 6. And the sum due, according to the statement of the auditor by an additional ac- . Count made in pursuance of this decree, amounts, on the 17th of February 1817, (the time when the auditor’s first statements were made,) to the sum of #5,867 25, including interest to the day.
    In directing the principles by which the sum justly and bond Jide due is come at, no regal’d is had to the manner of discharging the first instalment; for as the judgments, including interest and costs, excluding the two payments, the benefit of which is obtained by the authority of the court to the extent of those payments, and for the value of the legacy, relief is obtained here; but those who ask equity must do equity, and therefore the only relief which can be obtained against the amount of the judgments, is to get free from their effects by the payment of the sum justly due.
    The last point is the Costs. Considering the difficulties arising in the cause, and the want of an early offer on the part of Smith to give complete indemnity as far as practicable, and the persevering demands on the part of Dorsey for the entire removal of the legacies, which the contracts did not warrant, and his refusal even to pay the second instalment, it is not thought correct, to charge either party with the whole costs, more especially as Dorsey will obtain credit for the $300 and $900, which do not appear credited on the judgments, although it seems evident no intention existed to deny them; but not having been credited, executions might have issued for the full amount of the judgments. — Decreed, that unless the complainants shall, on or before the 13th of May next, pay to the defendant the aforesaid sum of $5S67 25, with interest on the sum of $5831 39, a part thereof, from the 17th of February 1817, until paid, or bring the same into this court to be paid to the defendant, that the injunctions heretofore issued in this cause be and the same, from and after the said 13th of May, are hereby dissolved: Provided nevertheless, that no more be levied under executions on the .said judgments than the said sum of $5357 25, with interest on the sum of $5831 39, a part 1 hereof, from Ihe 17th of February 1817. — Decreed also, that each parly in this court bear his own costs. From this decree the complainants appealed to this court; and pending the appeal Chapman's death was suggested.
    The cause was argued before Buchanan, Ch. J. and Earle, Martin, and Archer, J.
    
      C. Dorsey, the Appellant,
    in proper person, contended, 1. That by the decree of the chancellor Smith was not bound, from the proof in the cause, to exonerate the land from the liability imposed on him to pay the legacies, before he was entitled to call on Dorsey for the payment of the full amount of the purchase money.
    2. That the said decree alleges, that the complainant, by his bill, sought relief for a credit of $900 on the judgments, which, ivas no l credited thereon, when in fact no such credit was asked for, the same being credited on the judgments, and so stated in the defendant’s answer.
    ■ 3. That the said decree alleges, that the complainant asked srelief, by being credited with interest from the time when the defendant declined receiving the bank notes, when in fact no such relief is aked for by the bill.
    4. That the said decree alleges, that since filing of the said bill, Smith has procured the release of one of the legacies, when in truth there is no proof of such fact. [The release here referred to is as follows: “ Washington, Kentucky, 7th April 1821. I do hereby acknowledge to have received of Charles S. Smith the sum of five hundred pounds, f Maryland currency,) in full for a legacy devised to me by my late brother Henry Arundel Smith of Charles county, Maryland; and I do hereby release and discharge the said Charles S., Smith, and the estate upon which the said legacy is charged, from all future liability therefor. Witness my hand and seal.
    
      Margaret Smith, (Seal.)
    Witness present,
    
      John Chambers.
    
    Under a commission issued to the District of Columbia t® take testimony in this cause, the handwriting of John Chambers of the town of Washington, in the state of Kentucky, the above subscribing witness, was proved. There was also proof by another witness that he knows the handwriting of Margaret Smith above mentioned, the sister of Charles S, Smith, from frequently corresponding with her, in the course of which correspondence he had received letters with her name signed to them, which from a subsequent course of correspondence he ascertained certainly to be her handwriting; and he bad been long and intimately acquainted with her, and that he believed the signature, Margaret Smith', to the above paper, to be her handwriting; and he did not believe he could be mistaken about the signature.]
    5. That by the said decree a credit is allowed to the complainant for the sum of $560 22, for his interest in the legacy purchased by him of Wheatly, when a larger sum ought to have been allowed.
    
      6. That by the said decree no interest is allowed to the coni-. plainant, from the time when the complainant requested Smith to convey his title to the land, and offered to pay him therefor, and to pay him far the legacies, when he procured a release, and when he refused to do so.
    7. That the said decree allows interest on one third of the sum $2,066J. from the 25th of December 1 14, one other third from the 35th of December 1815, aud one other third from 25th of December 1816, when no interest ought to have been allowed.
    8. That the said decree decrees the sum due to the complainant on 17ih of February 1817, to be the sum of $5,867 25.
    9. Thai the said decree does not decree that upon the payment of the purchase moneys, Smith shall convey the land bought, to Dorsey.
    
    10. That the said decree decrees that the injunction may be dissolved, and that execution may issue on the judgments, Without decreeing that the defendant shall indemnify the complainant against the liability of the land for the legacy of Mrs; Smith.
    
    11. That the said decree allows interest on the amount of thS. legacies, when none ought to have been allowed.
    12. That the said decree decrees that each party shall pay ibis own costs, by him incurred.
    On the first point he insisted, that no parol evidence can be admitted to vary a written contract. Pow. on Cont. 430. Rob. on Frauds 10, 13. King vs. Baldwin, 2 Johns. Chan. Rep. 557. Jones vs. Sluby, 5 Harr. & Johns. 380.
    
    The defendant’s answer is not evidence in his own favour, Peake’s Evid. 56. Paynes vs. Coles, 1 Munf. 373, 379. Lady Ormond vs. Hutchinson, 13 Ves. 51, 53. Jones vs. Sluby, 5 Harr. & Johns. 380. Hart vs. Ten Eyck, 2 Johns. Chan. Rep. 62.
    On the fourth point. The release of the legacy was witnessed by Chambers, and he was not produced to prove it; but secondary evidence only was offered, viz. proof of the handwriting of the witness and the releasor, without sufficiently accounting for the nonproduction of the attesting witness. Prince vs. Blackburn, 2 East, 250. Barnes vs. Trompowsky, 7 T. R. 261.
    
      On the fifth point. If the appellant had sued the appellee for the amount paid for Wheaily’s legacy, he would have recovered the amount so paid. He must be considered as the agent of the appellee, doing that with his money which he was bound to do himself. The rule adopted by the chancellor, in allowing the appellant for the legacy purchased by him, was not the correct one. Doctor Halley’s rule is not the chancery rule of" this state.
    On the sixth point. If the money was withheld, then interest is to be paid. When had the appellee a right to call for his money? It may be answered — When he gave an equivalent for it. What was that equivalent? A deed for the land, and a release from the legatees. Until he did so, he had no right to demand cither the money or interest. The deed and release, and payment of the money, were concurrent acts to be performed at the same time. When the appellee brought his suit on the bond, he had no right to demand payment. He had no right to demand interest except for three years if he had complied in time. After he refused to comply, he had no right to require interest. Refusing to comply with a contract is a fraud; and a new contract sprung up after that refusal. Hoare vs. Allen, 2 Dall. Rep. 102, (note.) Interest upon a specialty may, under certain circumstances, be taken away in equity. Haynes vs. Harrison, 1 Cas. in Chan. 106. A vendor has no right to call for his money until he has tendered a conveyance to the vendee for the land sold. 1 Madd. Chan. 350. Grantland vs. Wight, 2 Munf. 186. Blount vs. Blount, 3 Atk. 636. Wainwright vs. Read, et al. 1 Desauss. 586.
    If the purchaser is let into possession, &c, he pays interest; and Powell vs. Martyr, 8 Ves. 146, has been referred to by the chancellor to establish that principle. But suppose he is not let into possession under the purchase, then of course he does not pay interest. The case referred to is not applicable to the present. Here the purchaser was in possession under a superior title; and the contract for the purchase of the remainder was not a purchase of possession, but of title.
    But here the appellee had no right to receive payment until he removed the incumbrance, which he had contracted to do. Sugden, 312. In Child vs. Lord Abingdon, 1 Ves. jr. 94, also referred to by the chancellor, there was a solemn contract to pay interest by a third person, not by the tenant for life, who was the purchaser. In Ex parte, Manning, 2 P. Wms. 410, the wearing out of the life was equivalent to profits. So also in Davy vs. Barber, 2 Atk. 489. But in Blount vs. Blount, 3 Atk. 636, the doctrine in the two last cases is exploded. Growsock vs. Smith, 3 Anstr. 877. cited in Sugden, 323. Maynard’s case, 2 Freeman 2, cited in Sugden, 312.
    On the seventh and eighth points. The chancellor has opened the whole contract — the defeasance, the first payment, and the judgment at law, without being ashed to do so by the appellee’s answer, raid without any error being alleged either in the defeasance or the judgment. He has done that which was not required by either party.
    On the ninth point. The decree does not direct that on pay-men; of the purchase money, the appellee shall convey the land to the appellant. Grantland vs. Wight, 2 Munf. 179.
    
    
      R. Johnson, for the Appellee.
    On the fourth point, he insisted that the proof of the release of the legacy was sufficient. If the subscribing witness is out of the jurisdiction of the court, bis handwriting may be proved. That that is the rule in England, and is the rule here. 1 Starkie’s Evid. 338. Fox vs. Reil, 3 Johns. Rep. 477, Sluby vs. Champlin, 4 Johns. Rep. 461.
    On the ninth point. The decree is, that the money should be brought into court, and when so brought in, the chancellor would not direct the payment over until a deed for the land was executed to the appellant. But the record shows that a -deed for the land had been executed, and it was exhibited with the defendant’s answer as an escrow.
    
    Oil the second point. The credit of $900 was not allowed on the judgments at law, as affirmed in the court of appeals, of course it was proper to be noticed in the decree, otherwise the appellee might have issued an execution for the whole sum, There was no injury, but rather a benefit to the appellant in allowing the credit. It is true the credit was entered on the judgments in the county court, but the records transmitted under Ihe appeals to the court of appeals, do not state the credit; and ft was on the affirmed judgments, executions were to issue.
    On the twelfth point If the decree in other respects ft right, then it is correct as to the costs. West vs. Biscoe, 6 Harr. & Johns. 460. Glenn vs. Fisher, 6 Johns. Chan. Rep. 33.
    On the fifth point. There is no proof as to what sum of' money the appellant paid for Wheatly’s legacy.
    On the sixth point. There is nothing in the contract which binds the appellee to clear the incumbrance on the land at the. end of three years. As the appellant neglected to pay the last instalment in December 1816, interest was then to be charged on the whole sum due. The appellant, being tenant of the feo under his purchase, he could cultivate the land with more ad» vantage than he could do as tenant for the life of Mrs. Dorsey. Powell vs. Martyr, 8 Ves. 146. Fludyer vs. Cocker, 12 Ves. 25. When the land was sold to the appellant if was worth $10,000; and if so it is now worth at least $20,000 — the life-estate being supposed to be nearly expended. To compensate the appellee interest should be paid on the purchase money. Ex parte Manning, 2 P. Wms. 410. Sugd. 326, 320; and Hughes vs. Kearney, 1 Sch. & Lef. 132, 134.
    
      Magruder and Taney, in reply.
   Archer, J.

delivered the opinion of the Court. There appear to be two principal questions presented in this cause, for the consideration of the court.

First. Ought the appellant, Dorsey, to be charged with interest, from what time, and on what portion of the purchase money?

Second. For what sum ought Dorsey to be credited on account of the legacy purchased by him?

The determination of the first question will depend' upon the construction which shall be given to the contract between the parties.- When the appellant purchased the remainder upon the death of his wife, Smith stipulated that he would exonerate the lands so purchased from the payment of the legacies charged upon it. We cannot concur with the chancellor in the belief, that by this Smith only agreed to indemnify Dorsey against the payment of the legacies, but wo consider it an undertaking to free the lands sold from all liability to pay them. The lands were charged with those legacies, and it was the object of the parties that the title to Dorsey should pass unincumbered by them. There is no impossibility in this covenant., as events hare proven; it was one, to be sure, which Might be somewhat difficult in its execution, but the legal obligation of tl;e party must not on this account be changed. It. is his agreement which has been voluntarily entered into, and the ether party bad a right to its performance before he could in equity be called on to pay the whole purchase money. The first, instalment due by Dorsey on the original contract for the sale of the lands was paid, and before the second instalment became due Dorsey entered into a bond, conditioned for the payment to Smith of the residue of the purchase money, as follows: $S,333§, with interest from tiie 13th of March 1814, oh or before the 25th of December 1815, and the sum of $3,333J, with interest on $66G|-, from the day of sale, on the 35th of December 1816. Thus l^ this contract there seems to have been a partial modification of the original agreement -as to the payments, and being the last stipulation must be considered as binding on the parties.

By a fair construction of these agreements, although Dorsey had agreed to pay the whole of the purchase money by the 25th of December 1816, and Smith had stipulated generally that the land should be exonerated from the payment of the legacies, without having named any definite time, we consider that he was hound to have complied with his contract on the day at which the last instalment became payable. But Smith had, unquestionably, the whole time until that period to comply witn his part of the agreement, and could not, until then, be considered in default. Dorsey’s second instalment, with interest thereon, became due a year before, according to this construction of die agreement, Smith could be called on to comply on his part. He never could have looked to the exoneration of the land as a condition upon which that instalment was to bo paid. lie should have paid it when it became due, ami his liability to pay interest thereon is not in the least changed by <atry oLthe ,subsenueut. events, lie had expressly agreed to p;ry intei’est on that sum from the date of the purchase; and the • same remark may be made with regard to a, part of the third instalment, to wit, the sum of $666-|. On this he had expressly stipulated to pay interest. Could he, On any principles of equity, claim to be relieved from this express agreement? Has he tendered the money; has be been ready ever since to' pay it? There is no evidence of this kind. To have placed himself irt a situation to be relieved against the payment of interest on this sum, he should not only have professed a willingness to have paid, but he should have tendered the amount, which be has not done. We therefore think, that the appellant should pay interest on the second instalment, and on $>666j-, of the ■third Instalment. But as regards the residue of the third instalment, to wit, the sum of $2,666-|, it is to be observed, that there is not only no express, promise to pay, interest, but there is, by the terms of the contract, an entire exemption from payment of Interest. That sum was to be paid on the 26th of December 1816, without interest; but Smith having put a different construction on the agreement, positively refused to exonerate the lands from the payment of the legacies. Dorsey was then justified in withholding from him payment of this sum; and according to the spirit of the original agreement, ought not, after such default, and until compliance, be compelled to pay interest on that sum. There is no principle of law which Would, in such a case, entitle the vendor, to the payment of interest. Had Dorsey been in possession of the lands, in virtue of the purchase, dr in the perception of the rents.and profits, in equity he would have been compellable to pay interest, because such advantages would have been considered as. equivalent to interest. But he had not possession by the .contract. The tenant for life was. in possession, and enjoying, in virtue of such life-estate, the rents and profits. He was the purchaser of a dry remainder. But it is contended that the wearing out of the life-estate is equivalent to taking the profits.. And this it is true, is the general position laid down in Sugden, 323; and the cases of Ex parte Manning, 2 P. Williams, 410, and Child vs. Lord Abingdon, 1 Ves. Jr. 94, are cited in support of the position. The case of Ex parte Manning came in review before Lord Hardwicke, in the case of Blount vs Blount, 3 Atk. 635, who remarked that he never knew “the court take into consideration, as a reason for the purchaser paying interest, the wearing out of lives.” This doctrine of Lord Ilardicicke is sanctioned in the case of Growsock vs. Smith, 3 Anstruther, 877. The falling in of lives may be considered as equivalent to the rents and profits. Davy vs. Barber, 2 Atk. 489. Blount vs. Blount, 3 Atk. 636. And in the. case Ex parte Manning a life had fallen in between the date of the purchase, and the application to complete the purchase; and besides, in that ease the purchaser, from the date of the confirmation of the report of sale, was considered as entitled to the estate, and no obstacles were presented, or could be presented, to a completion of the title; but here the incumbrances stipulated to be released were still hanging over the purchased estate, with refusal on the part of the veudor to release them. In the case of Child vs. Lord Abingdon, there was a decree for the payment of interest The Lord Chancellor said, aman could not lie by .for years, who was the purchaser of a dry reversion, and expect to pay no more for it than if he had completed it immediately. The decision in this, case is put upon the ground of delay in the purchaser who was waiting until the remaining life dropped in. Besides, in this case, like the case of Ex parte Manning, the purchaser's title. might be.considered as only requiring payment on his part to complete it. The principles which mark the distinction between the case-uuder consideration, and those above cited, are. too obvious to require further comment, or more minute illustration. When Smith complied with his contract in exonerating the land hy the purchase of the last outstanding legacy'', he was entitled to receive the part of the last instalment, amounting to the sum of $2,666?, and as it was not then paid, he was entitled to interest thereon from that period. This le~. gacy was purchased by the appellee on the 7th of April 1821, from which .day he should have interest on that sum.

We consider the release executed hy Margaret Smith valid for the purpose for which it was intended, and that the proof of its execution is sufficient. Where an instrumentary wit ness resides out of, the jurisdiction of the court, so as not to be amenable to its process, or cannot be found after strict and diligent inquiry, the proof of the handwriting of such witness is evidence' of everything on the face of the instrument. The scaling and delivery will be presumed. Vide 1 Phil. Evid. 419, (362,) and the cases there cited.

The consideration of the sum which should be allowed Dofsey for the legacy purchased by him, involves a question which has not been adjudicated by this tribunal. Should he be allow'-ed what he proves he has paid for it? We think not.' By'the contract he was not to pay the legacies; it was Smith’s business to disencumber the land. And, if he is made to suffer by the purchase, he has no person to blame but himself. When Smith refused to exonerate the land in violation of his contract, be subjected himself to the legal consequences of such an act; but it would be a most inequitable consequence of such refusal to say that Dorsey was thereby constituted his agent, with unrestricted powers to make the purchase; such a result would have placed him at Dorsey’s mercy. But equity demands, that having purchased the legacy he should be entitled to a credit, as against Smith, for the legacy, at its fair value, from the date of the purchase, (17 Feb. 1817.)

By what rule is its value to be estimated? The chancellor, in his decree, has adopted that value which ivas ascertained by the auditor by a reference to Doctor Halley’s table of observations, which have been used in England for the purpose of ascertaining the value of life annuities, and reversionary interests.' These tables are framed upon long and accurate observations oa the bills of mortality in England, and in other places, and may not be an unsafe guide lor the purpose in the region or latitude for which they were calculated. But the probability of the duration of human life, cannot be the same in every latitude and climate In the one it may be prolonged to the greatest age — in the other abbreviated to what, in a more healthful region, would be considered as but a middle age; and even, in•deed, in the same district of country the chance for the duration of life is by no means the same. Thus, would tables suited for the low lands of Louisiana, furnish any index of the duration of human life in the highlands of Maryland? And ■even in our own state, could any dependence be placed in the -/¡Calculation of the value, of an. annuity, or of a reversion expectant upon a life, which would say that as great a probabiliiy existed for the duration of human life amid the marshes of the Che.sape.ahe Bay, as in the mountains of Mleghany? These observations will be found to be verified by an examination of Hr. Halley’s tables, as suited to different parts of England, and to places on the continent. Whether these tables, upon which the chancellor's decree is founded, are suitable to this ¿state, could only be told by a long series of observations here, which not having been made, wc conceive it would be unsafe to adopt them. In ascertaining the value of this legacy at the time of its purchase, we apprehend, there would be a much hotter chance of justice being effected by applying by analogy the rule adopted long since in the court of chancery for the purpose of ascertaining the allowance to a 'woman, in lieu of dower, in land sold under a decree of that court. Mrs. Dorsey is shown to have been about, forty years of age at the date of tho purchase, and the calculation should be made in conformity with the above rule. By such calculation the legacy was worth' the sum of $761 90. With this value the appellant should ho credited on the day of the purchase of the legacy. He should also have credit for the sum of $300, paid on the 26th of Fe~bruary 1816, and the further sum of $900 on the 29th of December 1816.

We concur with the chancellor in his judgment as to the" .costs incurred in that court.

It is our opinion the appellant should be decreed to pay inte the court of chancery tho sum due Smith, on some day to be fixed by this court, and on failure to pay by such day, that the injunction ought to be dissolved. And it is further our opinion, that the appellee, incase the appellant should pay into court the sum ascertained to be due by the day to be appointed, be only-permitted to receive the same, upon his satisfying the chancellor that he has executed, acknowledged and delivered, to the appellant, Dorsey, a good and sufficient deed of conveyance, passing all his right to the lands sold the appellant in conformity with their contract dated the 13th of March 1814. Decreed, that the decree of the court of chancery, except as to the costs incurred in that court, be reversed, and that the appellant recover against tíre appellee, the. oijsls by the appellant expended in tfieprosecution of his appeal to and in this court. And this-court, 'proceeding to pronounce such decree as the court of chancery ought to, have pronounced — Decreed also, that there shall be credited on the judgments mentioned in the proceedings the Sum of $300, paid on the 26th of February 1816; the sum df $900, on the 29th of December 1816; and of the further sum of $761 90, paid on the 17th of February 1817, to James Wheatly, for his mother’s legacy. That the sum of $2,666y, being-part of the last instalment, shall bear interest from the 7th of April 1821; and that the claim of the appellee arising on the said judgments be stated as follows:

Clement Dorsey in account with Charles S, Smith.

For principal of second insalment, $3,333 S3'

Part of third instalment, 666 67

4,000 00

Interest thereon from the 13th of March 1814 to the 29th of December 1816, 670 67

Costs on judgments at law, 35 S6

4,706 53

1816. February 26. Then paid 300

December 29. Then paid 900 1,200 00

' 3,506 53

Interest on balance to the 17th of February 1817, ■ 28 05

3,534 58

Then paid James Wheatly, 761 90

2,772 68

Interest on balance to the 13th of July 1826, 1,564 72

Amount of legacies, 2,666 67

Intereston $2,666 67from the 7th of April 1821 to the 13th of July 1S26, - 842 67

$7,846 74

Decreed also, that unless the appellant shall, on or before the 1st of January next, bring into the court of chancery, to be paid to ihe appellee, the said sum of $7,846 74, with interest on $5,439 35 part thereof, from this 13th of July 1826 until brought in, the injunctions heretofore issued in this cause be and the same, from and after the said 1st of January next, shall be dissolved; Provided nevertheless, that no more be levied under executions on the said judgments at law, than the sum of $5,439 35, with interest on $2,772 68, part thereof, from the 17th of February 1817, and with interest on $2,666 67, the residue thereof, from the 7th of April 1821, until paid, together with any additional costs that may accrue on any proceedings that may be had on the said judgments. Decreed also, that in case the appellant shall, by the 1st of January next, bring into the court of chancery the said sum of $7,846 74, with interest en $5,439 35, part thereof, from this 13th of July 1826 until brought in, the appellee shall be only permitted to receive the same upon his satisfying the chancellor that he has granted and sonveyed to the appellant, and his heirs, in fee simple, by a good and sufficient deed of conveyance, duly executed, acknowledged and recorded, according to law, passing all his right, title, estate and interest, to and in the lands sold to the appellant, in conformity with their contract bearing date the 13th of March 1814. And in case the appellant shall fail to bring into the court of chancery by the 1st of January next, the said sum oí money, with interest as aforesaid, the injunctions on the judgments aforesaid shall not be dissolved, unless the appellee shall satisfy the chancellor that he has, by a good and sufficient deed of conveyance, duly executed, acknowledged and recorded, according to law, granted and conveyed the said lands to the appellant, and his heirs, in fee simple, in the manner before stated. And decreed also, that the chancellor pass all necessary orders and decrees for carrying this decree into full and complete effect.

DECREE REVERSED, &C..  