The opinion of the court was delivered, by
Strong, J.— In determining whether the instrument, dated January 1st 1849, was an immediate conveyance, or only an executory contract, we are to look for the intention of the parties, and this is to be sought for in every part of the contract. It contains words of present assurance (“ doth and hath by these presents granted, bargained, sold, and for ever quit claim,” &c.), and these words, doubtless, afford a presumption that an executed conveyance was intended. But that presumption is not conclusive. It may be overcome by the presence in the instrument of other words which contemplate a future conveyance, as it was in the case of Stokely v. Trout, 3 Watts 163, where the words of immediate grant were, “ have granted, bargained, sold, aliened, enfeoffed, released, and confirmed,” and where the instrument acknowledged the receipt of part of the consideration, but the vendor covenanted to “ make a more complete deed of conveyance.” So also in Stouffer v. Coleman, 1 Yeates 393. The same principle is laid down also in Williams v. Bently, 3 Casey 301, where it was said that “ the intention is so imperative in the construction of agreements, that the strongest words of conveyance in the present tense will not pass the estate, if other parts of the instrument show that this was not .the intention of the parties. A provision in the contract for the conveyance of the title at a subsequent time, on the performance of .stipulated terms, is generally decisive that the article of agreement itself was not designed to pass the title.” The presumption arising from the use of words of transfer in the present tense may also be overcome by other parts of the instrument, though there be no covenant for future conveyance. It was in Williams v. Bently, in Foster v. Foster, 1 Levinz 55, and in Ogden v. Brown, 9 Casey 247. In the last of these cases the rule was averred to be, that, “Whether an informal instrument, transferring an interest in real estate, shall be held a conveyance, or only an agreement for a conveyance, depends not on any particular words or phrases found in it, but on the intention of the parties as collected from the whole contract.”
*204In the instrument now before us, there are several things which are inconsistent with the presumption that the parties intended it as a final disposition of the subject-matter of their contract, and which tend therefore to rebut the inference which, without them, must necessarily be drawn from the vendor’s use of words of present conveyance.
It is called by the parties an agreement, a circumstance to which importance was attached in Stokely v. Trout, and which has been considered of some weight in other cases. In popular understanding there is a distinction between an agreement and a deed. The former is regarded as preparatory to the latter. A sale by articles of agreement, and a sale by deed, are in the common mind distinct in effect. When, therefore, the inquiry is, what the parties intended, it cannot be said to be of no consequence that they have called their contract an agreement.
It is to be observed, also, that the consideration for the action of George Stewart, the alleged grantor, seems to have been not the covenants of the vendee, but the performance of them. It was in consideration of covenants “to be done and performed,” and by the terms of the agreement that performance was to be prospective. If, therefore, the instrument be construed a present conveyance, it is a conveyance for no present stipulated consideration, none in hand received. This, it must be admitted, is in itself of no great importance, but is not without weight, in connection with other provisions of the agreement. In addition to these things, there are no words of inheritance in the instrument. If the parties intended it as an executed contract, then but a life estate passed to William A. Stewart, the vendee. That such an effect was the design of the parties, when by the same instrument it was agreed that twelve hundred dollars should be paid by the vendee in annual instalments, extended twelve years, and also seventy-five dollars in produce, such as the vendor might from time to time need after the date of the instrument, and such produce as the vendee might have to spare, it is difficult to believe.
But a more important thing, and one which appears to show quite satisfactorily that the agreement was not intended by the parties as a consummation of the proposed arrangement, is found in the provisions that George Stewart should withdraw and discontinue all suits in the Court of Common Pleas of Jefferson county, and acknowledge full satisfaction of all and any agreements then and theretofore in existence between the parties. These provisions are in immediate connection — in the same sentence with the words of grant. Yet they refer to something thereafter to bo done by the grantor, and they show at least that the whole contract was not considered as executed by him. The same words which it is argued conveyed the land, are used to *205express the obligation to discontinue the suits. If, in regard to the latter, they must be construed as prospective, why not in regard to the former ? Certainly, something more than the execution of this instrument was understood to be required of the vendor. Besides, such stipulations on the part of a grantor are altogether unusual and out of place in a conveyance of lands. Even their presence there seems to show that the parties contemplated further action, a more complete arrangement.
It is also a slight circumstance, an index pointing to the intention, that the agreement was not executed in the ordinary forms of a deed. Its execution was not acknowledged, and it was attested only by a witness. It was treated by the parties as ex-ecutory agreements are commonly treated, and not as an immediate conveyance of land.
Considering the whole instrument, therefore, we think it evinces that the intention of the parties was not to create an absolute and present conveyance of the land. It follows that it was only executory.
It was said in the argument, and it is stated in the paper-books, that William A. Stewart obtained the legal title from the Holland Land Company, after his agreement with his father. This does not appear upon the record, and we are not therefore at liberty to consider what may be the effect of such a conveyance. Dissenting, as we do, from the construction given by the learned judge of the court below, to the agreement of January 1st 1849, we are constrained to reverse the judgment.
Judgment reversed, and a venire de novo awarded.