The opinion of the court was delivered
by Lewis, C. J.— On the 23d February, 1850, John G. Beaver entered into articles of agreement for the sale of a tract of land to James Fox, at the rate of seven dollars per acre, $400 to be paid in hand, and the residue in four equal annual instalments. Beaver was to make a good warrantee deed to Fox, at the time when the last instalment should be paid. In 1853, before the last instalment was due, Beaver brought an ejectment to compel the payment of the instalments then due and unpaid. That cause was referred to arbitrators, who found for the plaintiff; the land in controversy to be released on the payment of $1089.65, on or before the 9th September, 1854. The parol evidence shows very clearly, that the last instalment was reserved from the award by the parties themselves. This action is brought on the legal title to enforce the payment of that instalment, and the award in the former action is relied upon as a defence. The award for the plaintiff merely established a right of entry. One judgment in ejectment, according to the common law, is not conclusive on the title. It is true, that in a conditional award like the one under consideration, the defendant’s equity may be concluded by his neglect to pay the money within the time specified in the condition. But this is a consequence of his negligence, and not the necessary effect of the award for the plaintiff. Our construction of the condition annexed to the award is, that it was the recovery, and not the title to the land, that was required to be released on the payment of the money mentioned. If the money had been paid within the time, and the judgment had been released according to the condition, the title would still have remained in the plaintiff as a security for the instalment remaining unpaid. There is no presumption, from the face of *453the record, that the condition embraced- an instalment not due at the commencement of the suit. The presumption is the other way. The arbitrators might, it is true, have included in the condition the whole sum contracted to be paid, but, in that case, they ought to have required from the plaintiff a full conveyance of the land in fee simple, on the payment of the money. They have not done so. They have disposed of nothing but the cause of complaint existing at the time the suit was brought, if it was made to appear that the condition actually did comprise the whole purchase-money due, the court, by virtue of its equity powers, would interpose to compel the plaintiff to convey the title in fee, according to the contract, as soon as the money was paid. But it is not pretended that the last instalment has actually been included in the former award. The defence is, that the award is a bar; and our construction of it, without taking into consideration the parol evidence, is, that it does not bar the present action. This may seem a strict construction, but it is a sound one, and we are satisfied that it accords with the intention of the arbitrators, the understanding of the parties at the time, and the substantial justice of the case. In the view we have here taken, it is unnecessary to decide how far parol evidence may be given, to show what were the matters adjudicated in the former action between the peculiar phraseology of the article of agreement, and the special circumstances of the case. We think that the court below was correct in its instructions in regard to the surplus land.
Judgment affirmed.