The" opinion of the Court was delivered by
Rogers, J.There is too much reason to believe that the memorandum of the 2Sth of April, is the result of a concerted plan to alter the original agreement. There is something very extraordinary, to say the least of it, in the conduct of Glass. According to his own statement, he was called on by the parties, merely to make a memorandum of the bargain relative to the delivery of the possession. This he converts into a distinct contract between the parties; and without any instruction from either of them, introduces a stipulation totally at war with the agreement, by which Sheperd is exempted from the payment of the hand money, until Jones “ can present him with the deed in full, free from all incumbrances.” As an agreement this is void, because without consideration; nor can it, under the circumstances, weigh a feather in the construction of the original agreement. For there can be but little doubt that it arose from a contrivance between the witness and the vendee, suggested, as is most probable, by the defendant himself. The case) therefore, depends on the construction of the agreement of the 8th of April. Laughlin was the owner of the legal title, and Jones of the equitable title, with the right to call for the conveyance of the legal title, upon payment of about 300 dollars, the residue of the purchase-money. All that Jones had to *503sell was his incumbered equitable estate, and we are not to suppose -that he intended to sell more than he had, or that Sheperd intended to purchase more, unless their intention appears otherwise in the face of the agreement itself. Thus, in Anwerter v. Mathiot, 9 Serg. & Rawle 397, it is ruled, “ That the judgment creditors of the vendee of land, who has paid part of the purchase-money, and has possession of the land, but has received no deed, are entitled to the proceeds of sale of his title, under an execution, in preference to the vendor.” It is there held, that the vendee of the sheriff takes the place of the equitable owner, and before he can call for the legal title, he must pay the amount of the purchase-money remaining unpaid; or, in other words, that he acquires no further'nor greater interest than the equitable owner. This being the legal construction of a judicial sale, no good reason can be given why the same principle should not be applied to a private sale, except so far as it appears to be altered by the contract. If the vendee wishes to avoid this legal inference, it is necessary for him to guard against' it by apt stipulations. But throwing out of view the extraneous matter which has been pressed into this cause, and which the district court properly disregarded,- what was the intention of the parties to this contract to be collected _from the instrument itself? Jones assigns to Sheperd all his interest in the premises, and this, we have seen, is an equitable interest, subject to the payment of the residue of the purchase-money to the owner of the legal title. The assignment is made on the back of the agreement, between Jones and Laughlin, and the agreement is transferred to Sheperd, together with the covenants and agreements therein contained, so that a deed may be made to the said Sheperd by the said Laughlin, upon payment of -the purchase-money. But who was to be answerable for the payment of the purchase-money? The inference is irresistible, that the owner of the equitable estate, viz. Sheperd, to whom Laughlin was'to give the deed, was to pay it. It is a legal inference, only to be controverted by something in the agreement indicative of a contrary intention. And this construction is strengthened by what follows. In consideration of which said bargain and sale, that is, the transfer of Jones’s equitable interest, subject as aforesaid, “ Sheperd agrees to pay to Jones the sum of one thousand dollars in hand, and the further sum of six hundred dollars in three years—two hundred dollars in each year, with interest on the same, after one year from date., until paid.” There cannot be a reasonable doubt, that the parties at the time understood that Sheperd was to take the place of Jones, and in consideration of the transfer as aforesaid, was to pay the sum of sixteen hundred dollars in hand, and without any deduction whatever. And Sheperd himself, and his legal adviser, must have so understood the bargain; for, unless this was the plain import of the agreement, why resort to the disingenuous and fraudulent method of altering the *504agreement, by foisting into the memorandum, made for a different purpose, a stipulation entirely at variance with the original article.
Judgment affirmed,