delivered the opinion of the Court. This is a contract not under seal, but the same rules govern the construction of it as those applicable to cases of covenant. The only question which would seem to be presented by the facts is, whether in a contract between parties, relative to the same subject matter, some stipulations may be mutual and independent, and others dependent and mutually conditional ; and this question was settled in the case of Couch v. Ingersoll, 2 Pick. 292. Indeed the point in question, constituted distinctly the ground of decision in that case, because the plaintiff, without having tendered performance on his part, recovered on a breach of one covenant because it was independent, and failed on the other, because *283¿pon the construction put upon it by the Court, it was independent.

In the present case, the two first instalments of the purchase money were to be paid before the time fixed for the conveyance of the land, and therefore it is very clear they are independent. Had a suit been brought for either of them, no tender, offer, or averment of readiness, would have been necessary, and no defence could have been made. The obligation of the defendant to pay the money at the times stipulated, was absolute and unconditional. But it is shown by the facts, that the two first instalments were fully paid ; and though payment was not made at the times fixed, yet it was afterwards accepted, and the plaintiffs affirmed the contract by suing on it. Then the question is, whether the payment of the last instalment on the one side, and the execution and tender of the deed, upon payment being made, on the other, were not de pendent and conditional; and we" think they were. The words are, “and the other half in two years, with interest annually, and the deed to be executed at the completing of the last payment.” Suppose the whole had been payable at once, instead of being payable by instalments, and the stipulation had been to pay seven hundred dollars in two years, the deed to be executed at the payment; upon this statement of the question, is there a doubt that the agreements would have been mutually dependent and conditional ? I think not. The intent of the parties is to govern. And what difference is there, whether the final payment is the whole or part, the remainder of the purchase money having been paid and accepted ? Where the whole purchase money is to be paid at once and the deed is to be then given, the covenants are held to be dependent, because it is unreasonable to presume that the purchaser intended to pay the whole consideration, without having the equivalent, in a title to the land purchased. The same reason applies to the last instalment. An obvious reason why the first and second instalments should be paid without having a deed is, that the vendor was to withhold the title, as a security for the purchase money, and the vendee was content to rely on the vendor’s contract for his future title ; but no such reason applies to the final and complete payment of the purchase money. Whether *284therefore we consider the particular language of the contract, or the general intent of the parties, we think these parts of the contract were mutually dependent and conditional, and the plaintiffs cannot recover without averring performance or an offer to perform on their part.

Plaintiffs nonsuit.