— The reasoning of the court, in the case of Wade v. Killough, (3 S. & P. 431) is very adverse to the first plea pleaded by the defendant, and it would be a decisive authority, if the first were similar. In that case, the title was to be executed on the same day on which the note given for the *289purchase money, was to be paid, and much stress is laid on the fact, that possession was given and retained by the purchaser. But here, the title was to be conveyed within a reasonable time after the contract of sale; while the purchase money was agreed to be paid at a day certain, which might be much beyond the period, at which the purchaser could have required the seller to convey the title; and the record gives no information respecting the possession; at least, none which can be used in the consideration of the first plea.-
It is very questionable, whether any extrinsic circumstances can be resorted to, in the construction of a contract, where there is no' ambiguity in the contract itself; however this may be in general, it is certain, that in this case, no aid can be drawn from such circumstances; as none are disclosed by the pleadings or proof. The plea insists; that the consideration of the single bill has entirely failed, from the omission and refusal of the plaintiff; to make a conveyance of the title within a reasonable period after the contract of purchase. It is not pretended, that a formal recision of the contract has taken place, unless such is the consequence of the breach of the plaintiff’s stipulation.
2. We think it very clear, that a recision of the contract does not necessarily follow as a consequence, of its non performance, by either party. The record shows nothing more, than an omission and refusal by the plaintiff, to convey the title within a reasonable period; and for this breach of the contract, the defendant was entitled to his action at law; or, if authorized by the' circumstances of the case, he could have prosecuted his bill in equity, to compel a specific performance, or to procure a recision of the contract.
3. The facts, disclosed by the plea, do not make the conveyance of title a condition precedent, to be performed before the payment of the money due by the single bill, could be rightfully demanded: because the time was not fixed when the con-* veyance was to be made, and therefore, the case is'within the precise letter as well as the spirit of the rule laid down by Sergeant Williams, (1. Saunders, 320, note 4;) who says, (when *290treating of the subject of dependent and independent conditions) “if a day be appointed for the payment of money, or a part of it, or for the doing of any other act, and the day is to happen, or may happen before the thing, which is the consideration of the money, or other act to be performed, an action may be brought for the money, or for not doing such other act, before performance: for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent: and so it is'when no time is fixed for the performance of that which is the consideration of the money or other act," See also Young v. Triplet, (5 Littell, 247.)
The facts disclosed by the plea, do not show a failure of the consideration for which the bill single was given, and therefore, there was no error in sustaining the demurrer to it.
4. The question raised by the second plea, is so entirely within the decision of this court, in the case of Christian v. Scott, (1. Stewart, 490) that we deem it unnecessary to examine it} for if it is conceded, that the fraud is sufficiently alleged and shown, it is now well settled, that the vendee will not be permitted, at law, to set up this defence to an action for the purchase money, so-long as he retains possession of the lands sold. We do not consider the case of Christian v. Scott, as conflicting with the subsequent case of Wade v. Kellough, (3 S. & Porter, 431,) and Pitts v. Cottingham, (MSS. January Term, 1839.)
It may be remarked that neither of the cases cited, present the question, whether a contract for the sale of lands can be rescinded, without the aid of a court of equity, when the conveyance of title has been executed. It is, perhaps, unnecessary to add, that the question is yet open, and cannot properly be determined, until a case involving it, shall arise.
6. The defendant cannot be permitted, in accordance with the course of decisions in this court, to complain that the issue of non assumpsit was submitted to, and tried by the jury. This error,, if itr be one, was caused by his own act, in pleading an improper plea; and without the issue, the ease would have been widefended. The submission of the case to the jury, on this-*291issue, could not prejudice the defendant, and however irregular in practice such a plea may be, it affords no cause for reversal.
7. The objection to the admission of the bill single in evidence, without proof of its execution, by George W. Stone, the co-obligor, is unavailable; it is, in effect, an attempt to raise a question which could only be raised by the obligor himself, on a plea of non est factum. If the objection was allowed to prevail, we should hear of it in every suit, against more defendants than one, when the cause of action was a written instrument; each of the defendants would object, that it was not proved that the writing was shown to have been executed by his co-defendants, and the whole object of the statute would be defeated.
It is considered, that the effect of the statute which requires the plea of non est factum to be pleaded on oath, is to make the allegation of the execution of the instrument sued on, mere matter of description; and if the instrument produced, conforms to the description, no proof of execution is necessary, in the absence of the plea; and then only as to the defendant who has pleaded it. There is no error in the record, and the judgment is affirmed.