
    [Philadelphia,
    February 6, 1836.]
    WALTER against WALTER and Another.
    IN ERROR.
    1. Indebitatus assumpsit will lie to recover the money agreed to be paid for owelty on a parol partition, of lands; though there must be an averment of circumstances to take the contract out of the statute of frauds.
    2. W here there was a special count in an action of assumpsit, which alleged, that the plaintiff, defendant and others, being tenants in common of land, appointed certain persons to make partition and appraisement, and that the persons so appointed did make partition and appraisement; in consequence of which the defendant became liable to pay the plaintiff a certain sum for owelty, &c.; and there was also a count in indebitatus assumpsit; and a third count was on an insimul computassent; and the evidence offered was of a partition made by the tenants in common among themselves, and of a valuation only, by the appraisers; it was held, that although this evidence' was variant from the special count, yet as the plaintiff was entitled to recover on the second count, tils' variance was not cause of demurrer.
    3. A parol agreement by the husband of a tenant in common, to make partition, after-wards ratified by her by deed duly acknowledged, is binding; and in an action by one of the parties to the partition, the original contract may be declared on, and it is not necessary to aver the ratification specially.
    4. 'A parol partition of lands was made in the year 1820, and possession delivered pursuant to it. In 1829 a deed reciting the partition and confirming the same, was executed by all the parties to the partition, excepting the defendant. In indebitatus assumpsit to ■ recover the' amount payable by the defendant for owelty of partition, it was held that the legal title not having been completed until within six years before the commencement of the suit, the statute of limitations was not a bar to the plaintiff’s recovery.
    This was a writ of error in the Court of Common Pleas of Northampton county.
    In the Court below, Lambert Walter and Jacob Seilor, executors of the last will of Abraham Walter deceased, brought an action of assumpsit against John Walter, in which the declaration recited,. that Michael Walter died intestate, &c. on or about the twenty-first of February, a.d. 1820, seised in his demesne as of fee of and in a certain tract of land situated in Forks township in the county of Northampton, adjoining lands of Jacob Seip and others, and containing 155 acres, 49 perches, strict measure, more or less, leaving issue eleven children, to wit,- John Walter, Barnet W'alter, Catharine Walter, George Walter, Jacob Walter, Abraham Walter, Michael Walter> Peter Walter, Elizabeth intermarried with George Belles, and Susanna intermarried with Christian Kutzler, to whom as tenants in common the said premises did descend and come, and that afterward on the first day of May, in the year aforesaid (1820) the said children severally agreed each with the other, to make partition of the premises to and among them, according to the awards, adjudication and appraisement of Rudolph Schweitzer, Daniel Brown, John Brown, Melcher Hay, Philip Odenwelder, Jun. John Rader, Jacob Seip, Samuel Neigh, John Shoemaker, and Philip Correll, and that they would severally pay to the others respectively their several and respective shares of any and every sum and sums of money which on such partition, valuation and appraisements, and the acceptance of the purparts of such real estate, should be found due from them or any of them respectively to the others of them respectively, when thereunto afterwards they should be severally or respectively required. That afterwards on the second day of May in the same year, the appraisers having taken upon themselves the burthen of the said arbitrament, adjudication, partition and valuation, made their award and adjudication of and upon the premises, making partition thereof into eleven parts, each containing 14 acres 19 perches of land, agreeably to a plot or draft thereof, and did value and appraise the said purparts respectively, as follows:
    Number one at and for the sum of - - 675
    Number two at and for the sum of * 700
    Number three at and for the sum of - - 660
    Number four at and for the sum of - - 675
    Number five at and for the sum of - - 675
    Number six at and for the sum of - - 800
    Number seven at and for the sum of - - 775
    Number eight at and for the sum of - - 650
    Number nine at and for the sum of - - 1100'
    Number ten at and for the sum of - - 1200
    Number eleven at and for the sum of - - 800
    And that the said children did then and there have notice, and did severally and mutually promise and agree each to and with the others respectively, that they should severally have the right to accept, select and take the said purparts according to seniority, at the valuations, the males having the preference of choice over the females, and that such of them as accepted purparts of the said premises, which were valued and appraised at more than the sum of $791 81f, should and would severally pay to such of them as accepted purparts valued and appraised at less than that sum, respectively, their proportion of such excess, for owelty of partition according to the said valuation and appraisement.
    The declaration then proceeded to set forth the acceptances, and averred that John Walter thereby became liable to pay to the other children of the said Michael Walter deceased, who had accepted purparts of the said premises, valued and appraised at less than $791 81 %, of whom the said Abraham Walter was one, the sum of $408 19-100 for owelty of partition as aforesaid, and that the proportion thereof due and owing from the said John tothe said Abraham was the sum of $53 32-100; and the said John being so indebted to the said Abraham in his lifetime in the sum of #53 32-100 on the same day and year last aforesaid, at the county aforesaid, undertook and faithfully promised the said Abraham in his lifetime to pay him the said last mentioned sum of money, when thereunto afterwards he should be requested.
    2d count. That the said John on the 1st day of January, 1829, was indebted to the said Abraham in his lifetime, in the further sum of #100 for the owelty of partition of certain lands and tenements, theretofore held in common by the said John and Abraham, and which had before that time been partitioned and divided between them; and being so indebted afterwards, to wit, on the same day and year last aforesaid at the county aforesaid, undertook and faithfully promised, &c.
    3d count. That the said John, on the day and year last aforesaid, at the county aforesaid, accounted with the said Abraham in his lifetime of and concerning divers other sums of money from the said John to the said Abraham before that time due and owing, and then in arrear and unpaid, and upon such accounting the said John was then and there found to be in arrear, and indebted to the said Abraham in the further sum of #100 ; and being so found in arrear and indebted he, the said John, in consideration thereof afterwards, viz. on the day and year last aforesaid, undertook and faithfully promised, &c.
    The defendant pleaded non-assumpsit, and payment, with leave to give the special matters in' evidence, non assumpsit infra sex annos and actio non accrevit infra sex annos; upon which issues were joined.
    The cause came on for trial on these pleadings on the 27th day of November, a. d. 1832, and by consent, the depositions of witnesses taken on a bill to perpetuate testimony were read in evidence.
    John Brown, a witness whose deposition was so taken, testified, that some time in the year 1820 he was called on by Michael Walter to assist in the valuation of the real estate of Michael Walter, deceased, in pursuance of which he met the other persons chosen; and on the 2d day of May, 1820, they made a valuation of the real estate of the said deceased in parcels, according to a survey or division thereof annexed. That he understood from all parties that each of the heirs had chosen a man to make a valuation, and that they had agreed upon the division according to the said survey. And that after the valuation should be'made, the heirs should make choice of their respective lots at the valuation according to seniority. That John Walter was present at the valuation, and that the survey or plot annexed is the survey of the partition alluded to, and that another paper identified and annexed is the valuation made by the persons chosen, and signed by all the appraisors, with the accept-’ anees of the said lots respectively by the heirs written thereon. That he knows that the parties accepted at the valuation their several purpar.ts of the said real estate and went into possession thereof as follows. Barnet Walter, No. 1, Abraham Walter, No. 2, Catharine Walter, No. 3, Peter Walter, No. 4, Christian Kutzler in right of his wife Susanna, No. 5, Jacob Walter, No. 6, Joseph Nicholas in right of his wife Elizabeth, No. 7, George Belles in right of his wife Mary, No. 8, George Walter, No. 9, John Walter, No. 10, and Michael Walter, No. 11, each containing 14 acres 19 perches. And the several persons who accepted lots or those claiming under them have held and enjoyed the parts accepted by them ever since. And that John Walter is yet in possession of the said lot No. 10 accepted by him.
    Philip Odenwelder stated in substance the same facts, with the addition that George Rader, the person chosen by John Walter, did not attend, but that John Walter and the other heirs agreed that the deponent and the other nine persons should proceed to make the valuation; which they accordingly did. That previous to the meeting of .the persons chosen to n^ake the valuation, the real estate had been divided into eleven shares, each containing fourteen acres and nineteen perches agreeably to the survey, and the men were chosen to make a valuation of the property.
    Melchoir Hay stated in substance the same.
    John Rader, Jacob Seip, both stated the same, all concurring in the fact that the partition had been previously agreed on by the heirs, and that they were merely chosen to put a valuation on the parts.
    Abraham Hay stated, that some time in the summer of 1829, he went with Abraham Walter to the house of John Walker; Abraham, had an agreement with him signed by all the heirs of Michael Walter deceased except John. Abraham asked John to sign it; he looked round at it, said he had nothing to sign, and then went out. I understood it was an agreement that each of the heirs of Michael-Walter deceased should hold the part of the estate which he had accepted, upon a division which had been made of the same. The witness identified the paper. That he was not at the valuation or partition nor does he know any thing of his own knowledge in regard to it.
    John Bidelman stated, that he went with Abraham Walter to the house of John Walter, Abraham asked John to sign an agreement, that the heirs of Michael Walter, deceased, should hold the parts of estate they had accepted on a division and valuation. John said he had nothing to sign and went out of the house; witness identified the paper.
    The following is a copy of the paper referred to by Bidelman:
    “ Whereas, Michael Walter, late of Forks township, in the county of Northampton, farmer, died on or about the twenty-first day of February, in the year of our Lord one thousand eight hundred and twenty, seized in his demesne as of fee, of and in a certain tract of land, gituated in the township and county aforesaid, adjoining lands of Jacob Seip, Peter Snyder, Peter Koechlein, Barnet Walter, the heirs of John Arndt, deceased, and Christian Butz, containing one hundred and fifty acres and forty-nine perches, strict measure, be the same more or less, leaving a widow named Anna Maria, who is also since deceased, and issue eleven children, to wit: John Walter, Barnet Walter, (of Pike county) Catharine Walter, George Walter, (of Smith-field,) Jacob Walter, Abraham Walter, Michael Walter, Peter Walter, Elizabeth, the wife of Joseph Nicholas, Mary, the wife of George Bellas, and Susanna, the wife of Christian Kutzler. And whereas the said heirs and legal representatives of said the deceased, did shortly after his decease choose and agree upon Rudolph Sweitzer, Daniel Brown, John Brown, Melchoir Hay, Philip Odenwelder, Jr. John Rader, JacobSeip,SamueINeigh, John Shoemaker and Philip Correll, to make a partition of the said premises, to and among the said heirs, and to value and appraise each purpart. In pursuance of which appointment the said viewers did on the second day of May, in the said year one thousand eight hundred and twenty, partition and divide the said premises into eleven purparts, agreeably to the draft thereof hereunto annexed, and did value and appraise the several purparts at, and for the following sums of money, that is to say :
    Number one, at the sum of $675
    Number two, at the sum of 700
    Number three, at the sum of ... 660
    Number four, at the sum of - - - 675
    Number five, at the sum of ... 675
    Number seven, at the sum of 775
    Number eight, at the sum of 650
    Number nine, at the sum of - - - 1100
    Number ten, at the sum of 1200
    Number eleven, at the sum of ... 800
    And thereupon it was mutually agreed by and among the said heirs and legal representatives of the said deceased, that the third part of the said valuation money should remain charged thereon, the interest whereof should be paid unto Anna Maria Walter, the widow of the deceased, during her life, and that such of the heirs as accepted purparts valued at more than $791 81 % should pay to such as accepted lots valued at less than that sum, their respective proportions, of such excess, according to the valuation of the purparts accepted by them, and it was also further agreed, that there should be allowed and opened for the use and benefit of the owners of the several lots or purparts, a road or way of the width of one perch, on the line between the lots, from the corner of Christian Butz’s land, and from the road leading from Arndt’s Mill, to Jacob Seip’s land, and throughout to Barnet Walter’s land. And thereupon afterwards the said heirs accepted the said purparts respectively, as follows, that is to say:
    Barnet Walter accepted lot or purpart No. 1.
    Abraham Walter accepted lot or purpart No. 2.
    Catharine Walter accepted lot or purpart No. 3.
    Peter Walter accepted lot or purpart No. 4.
    Christian Kutzler, in right of Susanna his wife, accepted lot or purpart No. 5.
    Jacob Walter accepted lot or purpart No. 6.
    Joseph Nicholas, in right of Elizabeth his wife, accepted lot or purpart No. 7.
    George Bellas, in right of Mary his wife, accepted lot or purpart No. 8.
    George Walter accepted lot or purpart No. 9.
    John Walter accepted lot or purpart No. 10, and
    Michael Walter accepted lot or purpart. No 11, at the valuation and upon the agreements aforesaid.
    “ Now, it is hereby agreed that the said John Walter, Barnet Walter, Catharine Walter, George Walter, Jacob Walter, Abraham Walter, Michael Walter, Peter Walter, Joseph Nicholas and Elizabeth his wife, George Bellas and Mary his wife, and Christian Kutzler and Susanna his wife, and their respective heirs and assigns, for ever shall severally hold the said purparts or lots, so as aforesaid accepted by them: The aforesaid John Walter, Jacob Walter, George Walter and Michael Walter severally paying to the other heirs, the sums falling due them, according to the agreement aforesaid, for owelty of partition, and that the said several heirs and their heirs and assigns, owners of the said premises, forever shall have the use of the said before-mentioned road, and each owner shall keep the same in repair so far as the same passes through his premises.
    “ In witness whereof the said heirs and legal representatives of the said deceased have hereunto set their hands and seals, the fourth day of July, in the year of our Lord 1829.”
    This deed was executed by all the heirs excepting John Walter; and it was duly acknowledged by the married women so as to pass their estates.
    The following is the paper referred to as containing the valuation.
    “ The real estate of Michael Walter, late of Forks township, deceased, is devided by a jury choshen by the heirs of the said deceased as folows, to wit, beginning at the line of Barned Walter, and valued at
    No. 1, $675 Mein Lot Bernhart Walter, (in German,)
    No. 2, 700 Mine Lot Abraham Walter,
    
      No. 3, $660 Mine Lot Catharine Walker, her mark X.
    No. 4, 675 Mine Lot Peter Walter,
    No. 5, 675 Chr. Kutzler,
    No. 6, 800 Main Lot, Jacob Walter,
    No. 7, 775 Joseph Nicholas,
    No. 8, 659 George Bellas, his lot,
    No. 9, 1100 George Walter, the Old Stand,
    No. 10, 1200 Mine Lot, (Abraham’s lot and buildings,) John Walter,
    No. 11, 800 Mine Lot, Michael Walter, X his mark.
    “ We, the subscribers hereof, haven appraised and valued the above real estate as above stated, and the parties agreed in the presens of the all the subscribers, that a road shall be alowed of one perch wid on the line between the lots to be gape oppen, to pase and repase from the corner of Christian Butz, his land, and from the road leatin, from Arndt Mill to Jacob Seips and truwout to the line of Barned Walter, the beginning of the numbers of the above lots: as witness our hands this 2d day of May, a. d. 1820.
    Rudolph Schweitzer, John Rader,
    Daniel Brown, Jacob Seip,
    John Brown, Samuel Neigh,
    Melchior Hay, John Shoemaker,
    Philip Odenwelder, Junr. Philip Correll.”
    After the plaintiff had gone through with the evidence, the defendant demurred to the evidence, the plaintiff joined in demurrer, and the jury found a verdict for the plaintiff, and assessed damages at $90 29-100, subject to the opinion of the Court on the demurrer to the evidence.
    The following causes of demurrer were assigned:
    “ First. That the evidence does not support the declaration, there being a material variance in this: that the declaration states that the appraisers “ took upon themselves the burthen of the said arbitrament, adjudication, partition and valuation,” and “ did make their award and adjudication of and upon the premises, making partition thereof into eleven parts, &c.” Whereas all the evidence shows that the partition had been made by the heirs, and a survey and plot made according to the partition, before the appraisers acted on the submission at all, and that all that was required of the appraisers was to make a valuation of the respective purparts.
    Second. That the partition though equal in quantity was unequal in value, and being made by femes covert was not binding, and that all must be bound or none.
    Third. That if the plaintiff ever had a cause of action against the defendant, it is barred by the statute of limitations.
    Fourth. That there is no proof of an express promise by John Walker to pay the difference between the value of the part accepted by him and his share in the whole valuation, nor any evidence from which a jury could be warranted in inferring such a promise; and indebitatus assumpsit will not lie for owelty of partition in money, of lands held in common.”
    The demurrer was argued by counsel and held under advisement till the of 1834, when the Court rendered judgment
    for the plaintiffs on the demurrer.
    Whereupon this writ of error was sued out.
    In this Court the following errors were assigned:
    “ 1. The Court erred in rendering judgment for the plaintiff on the demurrer to the evidence; the Court should have rendered judgment for the defendant for the causes of demurrer set forth.
    2. If any judgment could have been rendered for the plaintiffs, it should have been a special judgment de terris.
    
    3. The action was improperly brought in the names of the executors of Abraham Walter, deceased. If any action can be maintained, it should be at the suit of the heirs.”
    Mr. Brooke, for the plaintiff in error:
    1. The evidence did not support the declaration, and it is well settled that a variance in actions like the present is fatal. Archbold’s Civil Pleadings, 122, 369. Selwyn’s Nisi Prius, title Assumpsit. Stephen on Plead. 108. Snell v. Moses, (1 Johns. Rep. 96.) Saxton v. Johnston, (10 Johns. Rep. 418.) Urribehocker v. Russel, (2 Yeates, 339.) Funk v. Arnold, (3 Yeates, 428.) There is a substantial difference between appointing persons to make partition, and appointing them to make valuation, after a partition has been effected.
    2. I am aware that the question involved in the second cause of demurrer may be supposed to have been settled by the ease of Rhoads’s Appeal, (3 Rawle, 420); but in that case the wife had signed the original agreement. Here the married women were not parties in any way to the partition. It is true'that they were parties to the alleged ratification, and acknowledged the deed according to the act of Assembly; but I submit that the original agreement was absolutely void and incapable of confirmation. Co. Litt. 170, (b) Jackson v. Vanderheyden, (17 Johns. Rep. 167.) ■ Martin v. Dwelly, (6 Wendell, 13.) At all events they should have set forth specially that they had tendered the deed of ratification, instead of declaring upon the original contract.
    3. This is an action of assumpsit. The declaration sets forth a contract dated the 2d of May, 1820. The action was brought to April Term, 1831; consequently the statute of limitation operates as a bar. In the calculation of interest made by the plaintiffs counsel and which the jury adopted, the cause of action is made to commence on the 2d of May, 1820; and this being the time stated in the declaration, the plaintiff- is bound by it. Ballantine on Limitations, 84, 85. 3 Peere fVms. 143.
    4. There is no proof of an express promise. And I contend that indebitatus assumpsit will not lie for owelty of partition. Money directed to be paid for owelty partakes of the character of land, and is subject to the same rules of descent. Brooke’s Abr. title Partition, §5. Co. Litt. IQ, a. 16 Viner, 223, pi. 3. Plowden, 134. 1 Vernon, 133, was the case of a bond.
    
    Mr. Porter, for the defendant in error,
    having been requested by the Court to confine himself to the subject of the statute of limitations, argued 1st, that the money allowed for owelty was a lien upon the land; the recoveryof which might be enforced by ejectment, and consequently that the right to recover it was not barred or lost until after the expiration of 20 years. Boyd v. Grant, (13 Serg. SpR. 124.) Higgs v. Stimmel, (3 Penn. R. 117.) Allnat on Partition, 12. [Huston, J. — Suppose you have a promissory note secured by a mortgage upon real estate, would not the statute bar an action on the note 1] In Lenox v. M'Call, (9 Serg. Sp R. 302,) this Court held that a bond and mortgage were to be considered as one for the purpose of lien. Why should we be turned round, when there is no doubt we could recover in ejectment. In Pidcock v. Bye, (3 Rawle, 183,) assumpsit was held to lie against the assignee of land subject to the charge of the widow’s thirds, to recover the principal amount after her death. Judge Huston in that case, expressed his dislike of the idea that the equitable powers of the Court are more .extensive in one form of action than in another. If we had a Court of Chancery, a bill for special performance might be brought which would not be barred by the statute. In Higgs v. Stimmel, (3 Penn. Rep. 117,) Judge Kennedy speaks of the lapse of 20 years as barring the recovery of the money allowed for owelty.
    2d. The cause of action did notaccrue until the execution of the deed of 1829. Hart v. Porter’s Executors, (5Serg.SpR.201.) Jones v. Trimble, (3 Rawle, 386.) 4 Bac. Abr. 474. Blanchard on Lim. 104, 107. The plaintiff could not have recovered until he had tendered to the defendant a deed for his share of the land. Steinhauer v. Witman, (1 Serg. Sp R. 446.) Stoddart v. Smith, (5 Binn. 365.) Jordan v. Cooper, (3 Serg. Sp R. 564.) 2 Saunders, 67, {a) note 10. 6 Modern, 26.
    Mr. Brooke, in reply: — •
    The question is whether the party is not bound by the rules applicable to the form of action which he has adopted. The act of limitations is express in relation to the action of assumpsit. There is no authority to support the idea of a lien in the case of a voluntary partition. The act of 1807, in relation to compulsory partitions, it is true, gives a lien in such cases; but the provision shows that no such lien exists at common law. The case of Higgs V. Stimmel, does not sustain the position. It is settled that a lien does not exist in this state for unpaid purchase money; and the reasons which have led to that conclusion apply to the case of money payable for owelty. The case of Higgs v. Stimmel, also shows that the title was sufficient by a parol partition. If such is the law, the right of action accrued in 1820.
   The opinion of the Court was delivered by

Gibson, C. J.

Though usually dealing, for purposes of performance, with contracts but for the sale of lands, and compelling the vendor to fulfil his stipulations by a conveyance, equity entertains a bill also for payment of purchase money, on the ground of reciprocity of recourse, and not for failure of remedy at law. It seems formerly to have been thought in Armiger v. Clark, (Bunb. 111,) that, as the vendor wants but the purchase money, his remedy is exclusively at law. But in Lewis v. Lechmere, (10 Mod. 506,) it was conceded by the chancellor, that he may come into equity also for inadequacy of redress at law; since when, it has come to be arudimental principle that he may file a bill, or bring an action at his option. Mewl. Con. 89,91. Sugd. Vend. 294, 5. Where he is unable to prove the terms of a special agreement, his effective remedy is in equity by the force of circumstances. But though the common law may not imply a promise to pay in consideration of indebtedness for the price of land sold, why may not an action of indebitatus assumpsit, on the'principle of Lang v. Keppele, be substituted for a bill in equity, where the vendor has entitled himself to specific performance of a parol contract of sale? There is, perhaps, no common law medium, through which the matter proper for such a bill, can be exhibited to a jury with more convenience or advantage. Had exception been taken to the count instead of the measure of proof, the late case of Irvine v. Bull, (Sunbury 1835, 4 Watts,) which requires an averment of circumstances to take the contract out of the statute of frauds, would have interposed a formidable difficulty. A count for the price of land sold and conveyed, would doubtless be sufficient; and where the contract had been partially executed, an averment of possession given, would be equally so. Here it is not pretended that a case of part performance was not made out by the evidence; which, being sufficient to support an unexceptionable count, is sufficient to entitle the plaintiff to recover. It is immaterial, therefore, that there is a substantial variance between the proof and the count on a special promise; and that there is no proof at all of the insimul computassent. As the plaintiff was entitled to recover on the evidence, it must be intended that the count to which alone it was applicable, is the foundation of the judgment.

The defence on the statute of limitations, could be maintained but by showing a cause of action originally complete by delivery of possession pursuant to the partition. A parol partition in part executed, is undoubtedly valid, but as vesting no more than equitable title in severalty. The difficulty in Ebert v. Wood, (1 Binney, 218,) was to get the statute of frauds out of the way of the contract; to effect which, the case was very properly treated as one of part performance; but no one dreamed of the title being vested at law. Such being the state of the case when the parties here took possession in severalty, on what ground was the diffei’ence to be paid for owelty, demandable before tender of the legal title ? If there is any thing which equity scans with care, it is the title which is forced upon a purchaser by a decree of performance. A summary of the cases on this subject, is given by Mr. Sugden in his Law of Vendors, p. 310, by which it appears that a purchaser will not be compelled to pay for a doubtful or an equitable title; nor will a case to ascertain the solidity of the legal title be sent to the law judges without his consent. Even where they have certified in favour of the legal title, performance will not be decreed if the chancellor is dissatisfied with the equitable title; and wherever the point certified is doubtful, the purchaser may require it to be sent to other judges. Thus, we see that every possible care is taken of him, by seeing that his title is not only unimpeachable but above suspicion. There are undoubtedly exceptions to this, resting on express or implied terms of the contract, in which a purchaser acquainted with the nature of the title and treating for it without objection, will be compelled to fulfil his bargain, though circumstances might entitle him to subsequent relief, because he has got what he bargained for. But can it be supposed that a parol title is what these parties bargained for? Such might be an effectual ground of recovery or defence before a jury, but not as. conveniently so as a title vested by direct conveyance ; and equity will not compel a purchaser to accept a title depending on facts collectable from circumstances by a jury, but attended with such doubt as to effect the value of the estate as a marketable commodity. Such is the rule in chancery; and it appears to be a just one: Can it be intended, then, that these parties consented to be satisfied with a title which a purchaser of ordinary prudence would not have consented to take, when a better one could be had at the expense of a scrivener’s fee ? To suppose so, would be unreasonable. Now, a party seeking performance, instantly turns every thing to be done by him into a condition precedent; and as the legal title was not tendered till within six years before the impetration of the writ, the plaintiffs’ testator had not entitled himself to an action in time to bar them by the statute of limitations.

Judgment affirmed.  