The opinion of the Court was delivered by

It has been settled in a variety of cases, that whether an informal instrument transferring an interest in real estate shall be construed a conveyance or only an agreement for a conveyance, must depend, not on any particular words or phrases that are found in it, but on the intention of the parties as collected from the instrument itself, and, where that is doubtful,from the circumstances attending it. Looking at this transaction in all its bearings, we are satisfied that the paper of 21st. July 1829, which is the material one, can be construed in no other light than as an executory agreement. That it was so understood by Dr Ely, the concocter and maker of both the instruments, and the principal *46party in the whole business, is manifest from his testimony. The evidence of some of the defendants’ witnesses, as well as their conduct on various occasions, tend strongly to evince that they also so considered it, and that in their view the title remained in Dr Ely until they paid him the purchase money he had expended for the lots, and reimbursed his advances for building the church. But, independently of these, there is abundant in the language of the instruments themselves, and in the attendant circumstances, to show this. I speak now more particularly of the paper of the 21st July 1829; for I agree with the court below in the opinion that the first instrument was merged in the last. It must needs be so; for it embraced an additional lot, it imposed a larger rent, and added a material memorandum which was not in the first; and all this was doné with the concurrence of the defendants, who adopted the new instrument and entered it of record, and it constitutes the title under which they claimed, inasmuch as they never recorded the first instrument, nor does it appear that they gave any notice of it. And if these instruments be, as the defendants contend, conveyances, the result would be that the first could not be merged in the last by what occurred; because a deed for land executed and delivered is not merged merely by the delivery of another deed between the same parties for the same land. The estate conveyed continues to be hel'd under the first, and the premises here would be held by the defendants under a deed not recorded. The question therefore depends on the nature and character of the paper of the 21st July 1829; that of the 6th May 1828 being of no further effect than to exhibit the history of the transaction.

Now, this circumstance that the parties considered the last instrument as a merger of the first, as appears by the N. B. attached to it, tends strongly to show that the instruments were intended as agreements and not conveyances; for, as agreements, this substitution and merger set up by the defendants would be valid and effectual, but as conveyances they could not be. But there are other circumstances. The repeated use of the word “ lease” shows it was not considered by the parties as a conveyance in fee-simple on ground-rent, but as something of an inferior kind, in the nature of an interest to endure for a period not precisely fixed, to be at some future time completed by the defendants paying off the principal sum, (which by the memorandum is fixed to be on or before the 1st January 1836), or forfeited in the meanwhile by suffering the rent to fall in arrear and notice. Articles of agreement are sometimes made for the sale of land, and the vendee is let into possession when there are still remaining various conditions to be performed on his part, and he is then in the nature of a tenant at will till the conditions are performed. So here, the defendants being let into possession, were considered *47as having merely a lease, to be held subject to the performance of their stipulations, their existing right to terminate on non-compliance with them and due notice, or when changed into a fee by the payment of the purchase money in seven years. This is not only the evident construction given to the instrument by the parties, but it seems to be the only fair and reasonable one. The instruments were drawn by Dr Ely himself, who was unacquainted with legal forms and principles, and were adopted by the defendants without objection and without procuring more explicit and legal papers to be drafted by a lawyer or scrivener, as it undoubtedly would have been more prudent to do.

Then again, it is not easy to reconcile with the idea of a conveyance of the estate in fee-simple, the clause in the instrument giving to the trustees the power to lease the property in any manner not inconsistent with the conditions for any term of time, and to receive all rents that should accrue, which provision is contained in both instruments in the same words, and is obviously needless in a conveyance in fee-simple. The memorandum likewise shows that a further arrangement was looked to by the parties on or before the 1st January 1836, and that the present interest conveyed, termed a lease, was but temporary and provisional ; that within such time the tenure would be changed, and Dr Ely woul|thave his money returned to him, the Church taking the property off his hands, as appears to have been strongly and constantly expected and urged by Dr Ely.

Being then merely an executory agreement, the right of the defendants to hold the property must depend on their equity arising out of all the circumstances of the case; and the question is, whether a chancellor surveying the whole case would now decree them a conveyance under this agreement, and on what terms. The law seems to- be, that on a lease for years with such a condition, if the condition be broken, the interest of the defendants would be ipso facto void by the breach, without any re-entry; and where the lease is made ipso facto void by the breach, then no subsequent recognition of the tenancy can set it up. Pennant’s Case, (3 Rep. 64), and see the cases cited Com. Ld. & Tenant, 327, 330. In any event, the plaintiff having the legal title, and the defendants only an equity under articles, in order to defeat the plaintiff they must show that they are entitled now to call for a conveyance on settling an account and paying up all arrears of purchase money and interest or rents. They must show they have performed all that by the agreement they were bound to do, and were not guilty of acquiescence, delay or laches, and that they took such steps towards fulfilling their contract by relieving Dr Ely from his embarrassments, and in relation to his mortgage and sale, that in justice and equity they could now come into chancery and demand a conveyance.

*48As the case may be tried again, and on new principles, it would not be proper to say anything more on the merits.

Judgment reversed, and venire facias de novo awarded.'