majority">Carpenter, J.

The first error assigned is upon the refusal to nonsuit. It draws in question the construction of the agreement; for if executory, and the plaintiff’s right of action depended upon his first tendering a conveyance,'in such case, undoubtedly, a nonsuit should have been ordered. Whether the covenants be dependent or otherwise, is to be determined by the intention of the parties as indicated by the terms used in the instrument. As I understand it, the plaintiff below agreed to sell, not the legal estate, but bis equitable interest in the premises. The instrument purports to be an immediate sale and transfer of the vendor’s equitable estate in one-fourth of certain described premises, subject to a mortgage lien, which, or one-fourth of which, the vendee assumes to discharge, and from it to save the vendor harmless. The plaintiff transfers his equitable estate, and authorizes and requests the trustee to convey the title to the defendant. The defendant on his part agrees to pay the sum of $625 as the price of the purchase. No time was limited for the payment, and therefore, by operation of law, it was payable immediately upon the execution of the contract. Shep. Touch. 369 (Law Lib. Ed.); 7 T. R. 124; 8 John. 190; 8 Ib. *23274. The payment by the purchaser was not to depend upon anything to be first done by the vendor. The fair construction of the agreement is that the defendant was desirous to purchase the interest which the plaintiff held, to procure his rights and to place himself in his situation, and for this he agreed to pay the sum specified in the agreement. I think the covenant is clearly independent, and no further act was necessary to be done by the plaintiff to give him his right of action. 1 Saund. 320 a; Wilks v. Smith, 10 M. and W. 355; Hall v. Bainbridge, 5 Q. B. 243. In my judgment, the Judge was right in his construction of the instrument, and the nonsuit was properly ve~ fused.

A second matter assigned for error and urged on the argument, relates to the variance in the amount of the mortgage. But, this is an executed contract, and if the vendee did not receive precisely what he contracted for, his remedy must be on’ the agreement. If executory in such case, perhaps the vendee might refuse to complete the contract, on the ground that it was not that which he had agreed to purchase; but if I am right on the point already considered, this must fail the defendant likewise. If executed, it cannot be, indeed I did not understand if to be pretended that this would, in such case, necessarily vitiate the contract; but it was urged that it was a circumstance which the Judge ought to have permitted to go to the Jury as evidence of fraud — that it was a circumstance from which the Jury might infer fraud. 1 take it, however, that the Judge was right, and that from this alone, the Jury ought not to have been permitted to infer fraud.

But it has been repeatedly held, in accordance with the doctrine stated by the Judge, that in an action at law on a specialty, it is not competent for the defendant to avoid it by pleading that it was obtained by fraudulent misrepresentations made by the plaintiff. The solemnity of the instrument implies a consideration, and the defendant is estopped from averring a want of it. Dale v. Rosevelt, 9 Cow. 307; Vrooman v. Phelps, 2 John. 177; Dorr v. Munsell, 13 John. 430; 2 Kent. 464 ; and 3 Cow. Phil. Ev. 1448, where many of the cases are collected. But certainly in executed contracts under seal, when the party may have re*24ceived the benefit of his agreement, to permit it after a lapse of time to be disaffirmed at law, would lead to the grossest injustice. When the consideration has been given, then the parties at law cannot be placed in the same situation, and natural justice requires that they should be sent to a court, where those who ask equity Can be required to do equity. 2 Saund. Pl. & Ev. 527. I am aware that it has been said that fraud avoids everything, and that courts of Jaw have concurrent 'jurisdiction with courts of equity in cases of fraud; and it has even been said that a plaintiff cannot recover at law, in any case, where upon the same evidence of actual or constructive fraud, a court of equity would decree against him. But the doctrine is stated far too strongly. General expressions can seldom be safely applied except in connection with the circumstances under which made, and in due subservience to technical rules of pleading and of evidence. So far from being concurrent, fraud in obtaining a will of personalty is exclusively .vested in the Ecclesiastical courts, and in wills of real estate in the courts of common law; which in many cases equity relieves not only beyond, but contrary to the rules of law. 1 Story Eq. Jur. § 184 & note.

The third alleged error is that the lapse of time should have been left to the Jury, as a circumstance from which they might have inferred an abandonment of the contract. But the mere fact that eight years had elapsed since the date of the instrument, and since the debt accrued, before suit brought, could authorize no such presumption.

In regard to the question of interest, I think there was no error in the charge of the Judge. No time being limited for payment, the debt was payable immediately. The rule in such case does not stand as in case of contract to pay on demand, when there can be no default till demand made. In Scudder v. Morris (2 Pen. 419), the distinction was taken, and it was said that “ a promise to pay a sum of money, without naming the time, not only creates a present debt, but imposes an immediate duty; and as long as the debtor forbears to pay, there is some reason that he should recompense the creditor by a payment of interest for the detention of the debt.” In Farquhar v. Morris, (7 T. R. 120), on a bond for the payment of money, but no time spe*25cified, it was held that interest was payable from the time of payment, namely, from the date, (a)

In my opinion judgment must be affirmed.

Note (a). — In Boddam v. Riley (2 Bro. C. Cas. 2), it is said by Lord Thurlow that “ all contracts to pay, undoubtedly give a right to interest from the time when the principal ought to be paid.” See Blaney v. Hendricks, 2 W. Bl. 761; Dickinson v. Legare, 1 Dessaus, 537.

A note in which no time of payment is expressed is payable immediately, and bears interest from the date. Francis & Castleman, 4 Bibb 282; Collier v. Gray, 1 Overt. R. 110; 2 U. S. Dig. 615.

But if expressed to be payable on demand, carries interest only from the time of demand. Pierce v. Fothergill, 2 Bing. N. C. 167; Larason v. Lambert, 7 Halst. R. 254; 2 U. S. Dig. 615 & cases; Chit B. 681 (10th Am. Ed. 1842.)

Randolph, J.

concurred.

ükvius, J. There are two errors assigned for the reversal of this Judgment.

1st. Because the court refused to nonsuit the plaintiff at the trial, and

2d. Because the charge to the Jury was contrary to law.

In regard to the first, I think the court below committed no error in refusing to nonsuit the plaintiff. By the proof and production of the instrument upon which the suit was brought, he had shown a prima facie right to recover the sum sued for, and it was the province of the Jury to determine from the whole evidence then before them, under proper instructions from the court, whether he had done, or omitted to do anything by which he had forfeited that right. The court was not bound in that si age of the cause to decide upon the evidence that the contract was executory, and contained dependent covenants to be performed by the respective parties at a future day. Besides the instrument itself, there was some evidence which had been admitted, and which as I apprehend had a lawful bearing on the question, whether the contract was an executed, or an executory one, and upon that evidence it was for the Jury to pronounce. Without *26dwelling on this point, which is of minor importance in the ease, I proceed to examine the charge which is complained of.

In that charge I think the court erred in declaring in peremptory terms that the contract was an executed contract, that the plaintiff had done all that he was bound by express or implied covenant to do, and that the Jury were not to judge from the evidence as to the construction of the contract. It is not always an easy matter to determine from the terms of a written contract its true construction and the true intention of the parties, and where parol evidence is resorted to for that purpose, as it may be, if it don’t vary or contradict the instrument, it is the business of the Jury to pronounce upon the credit and effect of such evidence. Wherever the intention of the parties is to be sought for, out of the instrument itself, as from the circumstances under which it was executed, or by the acts or declarations of parties, explanatory of ambiguities upon its face, there such intention is a question of fact, for a Jury on the whole evidence. Murray v. Starr, 3 I. D. & R,. 278. It is not necessary for this court to decide whether the Judge at the Circuit, gave the true construction to the contract, it is sufficient that parol evidence was admitted, and had a bearing upon that question, and therefore I think it should have been left to the Jury. It is true that the contract contains words of present transfer and sale of the plaintiff’s interest in the premises, yet if from the tenor of the whole instrument, and the conduct and declarations of the parties at the time of, and subsequent to its execution, it can be clearly inferred that they contemplated a conveyance from Godwin as the consideration of the contract, it will, notwithstanding those words, be executory. 5 Wend. 26. The strong impression on my mind is, that from the terms of the agreement, the parties contemplated some future acts to be performed by the plaintiff, towards it consummation, and that the defendant was not to pay his money until he obtained his title from Godwin, and this impression is greatly strengthened by the fact that but one instrument was signed, and that deposited with a third person, and would not be used by the defendant in procuring his conveyance without the aid and concurrence of the plaintiff, and also the additional fact, that the plaintiff when called upon and told that *27the defendant wanted the matter settled, promised to attend to it. But whether I am right or not in this view, I think the Circuit Court erred in its instruction to the Jury on this point.

I think, too, that the Court erred in recommending that a verdict be rendered for $600 and interest. The defendant had made no such contract, and neither the court nor jury could make it for him. If the declaration had set out an agreement on the part of the defendant to pay $625, it would not be supported by proof of an agreement to pay $600, or any other sum, the variance would be fatal. And had it turned out in evidence that the mortgage on the premises was for $1400 instead of $1500, as expressed in the contract, the Jury would have had as good a right to increase their verdict in the same proportion as they have now diminished it, and this will scarcely be pretended. The proof should correspond with the allegation, and the verdict with the proof.

Again, I think the court, erred in its instruction to the Jury on the question of interest. They ought to have been permitted to decide from the whole evidence when the sum mentioned in the agreement became payable, if it became payable at all, and instructed to compute the interest from that time.

For the reasons I have mentioned, I am of opinion that the Judgment below should be reversed.

Judgment affirmed.

Affirmed, 1 Zab. 704. Cited in Stryker v. Vanderbilt, 1 Dutch. 494-497; Garretson v. Kane, 3 Dutch. 211; Baker v. Baker, 4 Dutch. 19; Mulford v. Peterson, 6 Vr. 135; Lord v. Brookfield, 8 Vr. 553; Ruckman v. Bergholtz, 9 Vr. 533; Leigh v. Clark, 3 Stock. 112.

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