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 [363]*363Dorsey 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 [364]*364intei’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 [365]*365vs 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
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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 [363]*363Dorsey 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 [364]*364intei’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 [365]*365vs 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 in[366]*366quiry, 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 expect[367]*367ant 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 tfie[368]*368prosecution 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 [369]*369to 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..