The bill is filed by a vendor of land against the purchaser for an account and for the recovery of a balance of the purchase money. An account was decreed and taken, from which it appears that the purchaser has paid, within the times mentioned in the written contract, the whole purchase money and $32.32 over. This result depends upon the allowance to the defendant, as credits in the account, of certain debts which he claims to have paid for the complainant, and also upon his not being charged interest on the purchase money before the instalments became due.
The complainant’s counsel objects to the account upon two grounds. 1
First, That a part of the debts, if paid, were paid without authority; and that these being deducted will leave a balance due to the complainant. And he insists that, under the circumstances, a court of equity will give him relief by a decree for such balance.
This ground of objection raises several questions.
1. The first is a question of fact. Were these debts paid with the consent or approbation of the complainant ? It is not positively proved that the complainant gave a .written or verbal authority in every case ; yet, there is sufficient proof to satisfy the Court that there was an understanding between the parties as to the payment of the debts ; and, if the debts paid' were just debts, it is the opinion of the Court that they ought to be allowed as credits in the account.
It is objected that there should be proof on the part of *365the defendant as to the existence of the debts prior to their payment,—that the complainant cannot prove their non-existence, and that the onus probandi is on the defendant. This objection is not sufficient. If difficulty of proof exists, it is from the complainant’s own act in prosecuting his claim in a court of equity. It might indeed have been necessary for him to come into this Court for a discovery and to obtain an account to enable him to recover at law. But after an account he might have proceeded at law ; and there the onus probandi as to the existence of the debts and payments would have been on the defendant. The complainant has chosen to proceed to a final decree in this Court, and the difficulty is one of his own creating. There can be no surprise upon the complainant in this case. The exceptions to the accounts put the matter in issue. It is not necessary to consider precisely how far the account is to be taken as evidence ; but being made under oath, in answer to the prayer of the bill, it must have some effect as evidence with respect to matters about which there is no proof to the contrary.
2. But further,—with reference to the allowance of the debts there is another question. Is proof of the complainant’s authority for their payment by the defendant necessary ? Suppose it to be the case of purchase money ($2,000.00) payable in five instalments, without any stipulation as to how it should be paid. Then, the broad question would be, what is payment ? Would it include only debts paid by order of the complainant, or would it not in equity extend to any debt actually due from the complainant and paid by the defendant ?
It is sufficient to say that the complainant, having come into this Court for its aid, must do equity. And if debts due from him have been paid, he will be required, in seeking relief here, to allow such payments. This Court will deal with the ease upon equitable principles. If the complainant insists upon his strict legal rights under the *366articles of agreement, Ms remedy is in a court of law. Under this view, his bill, on this part of the case, ought to be dismissed for a want of equity.
Second,—The next objection to the account has respect to the interest. The .complainant seeks to charge the defendant with interest from the date of the articles.
This claim is not made on the ground of the written contract; for the terms of the contract do not warrant it. Nor does the complainant’s counsel dispute the general rule of law, for which authorities were cited and which to my knowledge has been established law in Delaware for fifty years, that interest can be demanded only from the time mentioned in the agreement.
The interest, is claimed to run from the date of the articles, on the ground that the parties so intended, but omitted to insert a provision to that effect in the contract, There is an entire failure of proof on this point. Even if there had been such proof, it would have been necessary to consider whether paroi testimony7 would be admissible for such a purpose.
But the interest is claimed on the further distinct ground that after the sale and before the purchase money was paid,the vendor permitted the purchaser to take possession of the land,—which, it is insisted, implies an agreement on the part of the purchaser to pay interest.
I have examined and considered the authorities cited to this point, and am of opinion that they do not apply to such a case as this. I know of no rule or principle of law out of which such an obligation could arise. It would be against reason and common sense.
The reason assigned for such an obligation is, that the purchaser cannot compel a conveyance until he pays all the purchase money; and, therefore, if he gets possession it is a consideration for which he ought to pay interest. This' position assumes what is not true in fact. The contract *367is that the complainant shall convey “ at the reasonable request” of the defendant. This the law considers to be forthwith or immediately. The conduct of the parties, by the execution of a deed in 1824, before the purchase money had been all paid, is evidence that they understood such to be the nature of the contract.
Again, the ground taken rests upon what is not true as a principle of law, viz ; that the obtaining possession is a consideration which creates an equitable obligation to pay interest. Consider the nature and effect of the contract. The defendant became the owner. He had the equitable title. The complainant, if he retained the title, would have been a trustee for the defendant and accountable to him for the profits. It is too absurd a principle to be admitted, and is contrary to equity, that if the defendant took possession of his own property, which it was lawful for him to do, that such an act should make him liable to pay a larger sum for the land than he had agreed to pay; that the legal effect of doing a lawful act—of exercising a right by possessing himself of his own property, should make the defendant liable to pay interest beyond and in contradiction to the express terms of the written contract. I am of opinion that the claim for interest cannot be sustained.
The exceptions to the account must be overruled and the bill dismissed with costs.