Cooper, J.,
delivered the opinion of the court.
Mrs. Sinnott exhibited the bill in this cause against Atkinson to cancel a deed she had made to him, as obtained by fraud, or, if upon hearing, this relief should be denied, she prayed specific performance of its terms against him. The instrument giving rise to the controversy is here set out, and is followed by the only paper signed by Atkinson. The deed is as follows :—
“ N. Sinnott and wife, deed to Wm. Atldnson.
“ State op Louisiana,
“ Parish op Orleans.
“For and in consideration of the sum of one thousand dollars, to be paid to us within -ten days from the date hereof as per agreement entered into with William Atkinson, of Magnolia, Miss., we [506]*506hereby sell, convey and warrant to the said William Atkinson, his heirs, assigns, all that portion of land lying in the town of Magnolia, county of Pike, state of Mississippi, known as the Sinnott Place, the same being the only and all the land owned by us in said county and state, excepting only that portion of land lying near the track of the Illinois Railroad and the creek known as the Minnehaha creek, upon which our residence is built (the boundaries are to be indicated by iron posts set up at the corners thereof), and now enclosed by a wooden fence. And we hereby sell, convejr, and warrant to the said William Atkinson, his heirs or assigns, the above-described reservation of home and lot of ground, upon the payment by him to us or our administrators of the sum of five hundred dollars. Witness our hands this 19th day of August, A. D. 1887.
N. Sinnott. .
Arabella D. Sinnott.”
This instrument was properly acknowledged as a deed by the grantors before a notary public in the city of New Orleans on the day of its date. On the same day Atkinson, by his agent, delivered to Mrs. Sinnott a written promise to pay money, in the following-form, as claimed by Mrs. Sinnot, but Atkinson asserts that the words “ to be,” which are italicized, were inserted ¿herein by complainant after its delivery by him:—
“New Orleans, August 19th, 1887.
I hereby agree to pay to Nicholas Sinnott and A. D. Sinnott the sum of one thousand dollars ($1000) within ten days from date, or upon approval by my attorney of a certain deed to be made to me by said parties to a certain tract of land in Pike county, Mississippi, known as the Sinnott Place.
Wm. Atkinson,
Attest J. H. Levy. Per R. M. McDonald.”
Complainant seeks to avoid the conveyance made by herself and husband on the ground that it was obtained by fraud. But the only fraud averred, or sought to be proved, is that while she and [507]*507lier husband intended only to make a written contract to convey, the defendant put the contract in the form of a deed, and, knowing that the grantors therein did not then intend to execute a deed, fraudulently secured the instrument to be executed, representing it to be only a contract to make a future conveyance. There is no pretense that the instrument does not set out according to the understanding of all parties the land to be conveyed, the price at which it was to be sold, and the time at which the purchase-money was to be paid. The sole complaint is, that by the fraud of the defendant, a contract to make a conveyance in the future, ivas made to take the form of a present conveyance. It would be a sufficient reply to this to say that, if a court of equity should afford to complainant all the relief it can give in conformity with its inherent principles, she would be ■ left precisely in the attitude in which she now stands. Certainly she must do equity as a condition of receiving relief, and, according to her own showing, she can only vacate the deed she assails upon condition of executing another of precisely the same tenor. It is incontrovertibly shown that, within the time named in the writing given by him, Atkinson tendered the purchase price, and has continuously kept his tender good and has paid the money into court with his answer, where it now is, subject to complainant’s acceptance. Under these circumstances there would be no shadow of right to relief on the ground now under consideration. But, in addition to this, it is shown that soon after the execution of the deed Atkinson went upon the premises for the purpose of making a survey of the land bought, and complainant then pointed out the lines, and after the survey permitted him to enter upon the land, which he has since improved, according to his testimony, by putting up a house at a cost of $12,000. We approve the action of the court below in refusing relief upon the allegations of fraud in procuring the conveyance.
The alternative prayer for relief was that the court should direct and compel the defendant tp pay to complainant the sum of $1500, and that the whole land composing the Sinnott place, including both that part sold to Atkinson at $1000 and the homestead reservation, valued at $500, should be decreed subject to sale for the [508]*508whole sum. From a final decree in accordance with this prayer, the defendant, Atkinson, appeals.
The question is whether there was a sale of the whole premises at the sum of $1500, as the chancellor has found, or a sale only of the land, exclusive of the residence lot, at the sum of $1000, with the privilege or option secured to Atkinson to become the owner of the residence lot upon payment of the further sum of $500.
This question is determinable from the contract of the parties as found in the writings signed by them. While the conveyance uses words in reference to the residence lot of well settled technical significance, and which imply a present grant, the context shows that a different construction should be put upon them to meet the meaning in which they were employed. In the prior portion of the conveyance the residence lot was expressly reserved, while a fixed price, to be paid at a fixed time, and evidenced by a written obligation of the grantee, was stipulated to be paid for the other land. The concluding clause of the deed, while using words of present conveyance of the home lot, indicates that the conveyance thereof was to be effectual only “ upon” the payment of the price named, $500; and neither by the deed nor by any writing signed by Atkinson, is there imposed on him the correlative obligation of paying the price or accepting the deed as conveying this land. In fact, he did not enter upon the possession of this part of the property, nor is it claimed, either in the pleading or evidence, that he agreed to be the purchaser thereof. It is a well settled rule of construction that where the whole of a written instrument shows that the parties thereto employed technical language in a sense different from its ordinary meaning, the primary meaning of the words is what the parties meant, and not what the technical words usually import. Elphistone on Interpretation of Deeds, rule 16, page 76. “It is a rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done.” Lord Ellenborough, in Barton v. Fitzgerald, 15 East, 540.
[509]
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Cooper, J.,
delivered the opinion of the court.
Mrs. Sinnott exhibited the bill in this cause against Atkinson to cancel a deed she had made to him, as obtained by fraud, or, if upon hearing, this relief should be denied, she prayed specific performance of its terms against him. The instrument giving rise to the controversy is here set out, and is followed by the only paper signed by Atkinson. The deed is as follows :—
“ N. Sinnott and wife, deed to Wm. Atldnson.
“ State op Louisiana,
“ Parish op Orleans.
“For and in consideration of the sum of one thousand dollars, to be paid to us within -ten days from the date hereof as per agreement entered into with William Atkinson, of Magnolia, Miss., we [506]*506hereby sell, convey and warrant to the said William Atkinson, his heirs, assigns, all that portion of land lying in the town of Magnolia, county of Pike, state of Mississippi, known as the Sinnott Place, the same being the only and all the land owned by us in said county and state, excepting only that portion of land lying near the track of the Illinois Railroad and the creek known as the Minnehaha creek, upon which our residence is built (the boundaries are to be indicated by iron posts set up at the corners thereof), and now enclosed by a wooden fence. And we hereby sell, convejr, and warrant to the said William Atkinson, his heirs or assigns, the above-described reservation of home and lot of ground, upon the payment by him to us or our administrators of the sum of five hundred dollars. Witness our hands this 19th day of August, A. D. 1887.
N. Sinnott. .
Arabella D. Sinnott.”
This instrument was properly acknowledged as a deed by the grantors before a notary public in the city of New Orleans on the day of its date. On the same day Atkinson, by his agent, delivered to Mrs. Sinnott a written promise to pay money, in the following-form, as claimed by Mrs. Sinnot, but Atkinson asserts that the words “ to be,” which are italicized, were inserted ¿herein by complainant after its delivery by him:—
“New Orleans, August 19th, 1887.
I hereby agree to pay to Nicholas Sinnott and A. D. Sinnott the sum of one thousand dollars ($1000) within ten days from date, or upon approval by my attorney of a certain deed to be made to me by said parties to a certain tract of land in Pike county, Mississippi, known as the Sinnott Place.
Wm. Atkinson,
Attest J. H. Levy. Per R. M. McDonald.”
Complainant seeks to avoid the conveyance made by herself and husband on the ground that it was obtained by fraud. But the only fraud averred, or sought to be proved, is that while she and [507]*507lier husband intended only to make a written contract to convey, the defendant put the contract in the form of a deed, and, knowing that the grantors therein did not then intend to execute a deed, fraudulently secured the instrument to be executed, representing it to be only a contract to make a future conveyance. There is no pretense that the instrument does not set out according to the understanding of all parties the land to be conveyed, the price at which it was to be sold, and the time at which the purchase-money was to be paid. The sole complaint is, that by the fraud of the defendant, a contract to make a conveyance in the future, ivas made to take the form of a present conveyance. It would be a sufficient reply to this to say that, if a court of equity should afford to complainant all the relief it can give in conformity with its inherent principles, she would be ■ left precisely in the attitude in which she now stands. Certainly she must do equity as a condition of receiving relief, and, according to her own showing, she can only vacate the deed she assails upon condition of executing another of precisely the same tenor. It is incontrovertibly shown that, within the time named in the writing given by him, Atkinson tendered the purchase price, and has continuously kept his tender good and has paid the money into court with his answer, where it now is, subject to complainant’s acceptance. Under these circumstances there would be no shadow of right to relief on the ground now under consideration. But, in addition to this, it is shown that soon after the execution of the deed Atkinson went upon the premises for the purpose of making a survey of the land bought, and complainant then pointed out the lines, and after the survey permitted him to enter upon the land, which he has since improved, according to his testimony, by putting up a house at a cost of $12,000. We approve the action of the court below in refusing relief upon the allegations of fraud in procuring the conveyance.
The alternative prayer for relief was that the court should direct and compel the defendant tp pay to complainant the sum of $1500, and that the whole land composing the Sinnott place, including both that part sold to Atkinson at $1000 and the homestead reservation, valued at $500, should be decreed subject to sale for the [508]*508whole sum. From a final decree in accordance with this prayer, the defendant, Atkinson, appeals.
The question is whether there was a sale of the whole premises at the sum of $1500, as the chancellor has found, or a sale only of the land, exclusive of the residence lot, at the sum of $1000, with the privilege or option secured to Atkinson to become the owner of the residence lot upon payment of the further sum of $500.
This question is determinable from the contract of the parties as found in the writings signed by them. While the conveyance uses words in reference to the residence lot of well settled technical significance, and which imply a present grant, the context shows that a different construction should be put upon them to meet the meaning in which they were employed. In the prior portion of the conveyance the residence lot was expressly reserved, while a fixed price, to be paid at a fixed time, and evidenced by a written obligation of the grantee, was stipulated to be paid for the other land. The concluding clause of the deed, while using words of present conveyance of the home lot, indicates that the conveyance thereof was to be effectual only “ upon” the payment of the price named, $500; and neither by the deed nor by any writing signed by Atkinson, is there imposed on him the correlative obligation of paying the price or accepting the deed as conveying this land. In fact, he did not enter upon the possession of this part of the property, nor is it claimed, either in the pleading or evidence, that he agreed to be the purchaser thereof. It is a well settled rule of construction that where the whole of a written instrument shows that the parties thereto employed technical language in a sense different from its ordinary meaning, the primary meaning of the words is what the parties meant, and not what the technical words usually import. Elphistone on Interpretation of Deeds, rule 16, page 76. “It is a rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus; every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done.” Lord Ellenborough, in Barton v. Fitzgerald, 15 East, 540.
[509]*509Looking to the whole deed, it is evident that the reserved lot was intended to be dealt with in some manner other and different from that in which the other land was dealt with. Manifestly, it was not intended to sell the whole at a lump sum, for such construction would render inoperative that clause of the conveyance by which the reservation was made of the residence lot, and would have entitled the grantee to the immediate possession of the whole, and this in direct conflict with the contract of the parties, that the residence lot should only pass “ upon” the payment of the price for which it was agreed to be sold.
Looking only at the clause having reference to the residence part of the lot, we find the present effect of the granting words limited and restrained by the words which succeed it, by which it appears that the conveyance was to be operative as to this lot only upon the payment of the purchase price. The taking effect of the grant evidently depended on something to be thereafter done, and which must be done as a condition precedent to the operation of the grant. But there is nothing in the deed or in the conduct of the parties from which arises an obligation on the part of Atkinson to perform the condition. If he 'had been admitted to the possession of the property, and had accepted the possession, claiming under the deed, a different question might be presented. It may be that even then he would have been compelled either to pay the money or surrender the possession. But, confessedly, there has been neither a recognition of his right to possession by complainant, nor a claim by him of such right. It was never the intention of the grantors to make an immediate sale of the residence lot, nor of Atkinson to make an immediate purchase.
Looking to the deed alone, we find nothing which binds him to buy. If we look to the circumstances of the parties to discover therefrom what meaning they intended to convey by the use of the words, “ upon the payment of the sum of five hundred dollars,” it is clear beyond all doubt that no present sale was intended. The complainant testified that she was unwilling to make a present sale of the residence, which she desired to retain as a place of recreation for an invalid husband during his life, and that the pur[510]*510pose of the clause of the deed referring to the sale of this lot was to give Atkinson the right to buy it at the price named, after the death of herself and husband. We are not to be understood as deciding that it is permissible to seek to find the unexpressed intention of the parties to the deed. What they intended must be found from the language of the deed; but it is competent to look to the surroundings of the parties, not to contradict, but to interpret the meaning of the words they have employed.
We find nothing'in the deed from which a present conveyance of the residence lot, or an obligation on the part of Atkinson to buy it, can be inferred; and, since he tendered with his answer the money due for the land he did buy, the money should have, been directed to be paid to complainant, and she should have been denied interest on said sum and costs of court.
The decree is reversed on the appeal of the defendant, Atkinson, and cause remanded.