
    BENJAMIN P. SOPER AND MARY, HIS WIFE, v. PETER KIPP.
    1. By writing under seal executed by heirs-at-law, it was agreed that P., one of them, should have the out-lots for his share, and that the other three should take for their shares the homestead farm ; and that P. would execute to the other three, separately, a release for the share which the three migh. agree that each of them should have in the homestead, when a certain mortgage given by the intestate on one of the out-lots should be discharged; and that as soon as P. should execute such releases, the others should execute releases to him for the share which it was thereby agreed he should have. P. took possession of the share assigned to him by the agreement. Afterwards, by an agreement between the three, a certain part of the homestead was assigned to M., one of the three, and the other two released the same to her, and M. released to the other two all her interest in the residue of the homestead Previous to the agreement among the four, H., one of the heirs, had given a mortgage on his undivided interest in the whole real estate. M. filed a bill against P. for .the specific performance of the agreement on his part to release to her the share so assigned to her, tendering a release of her interest in his share. Neither of the said mortgages was paid at the time of the filing of the bill; but the mortgage given by the intestate was paid before the hearing of the cause, and the mortgage given by H. on his undivided interest in the estate had been foreclosed, and his said interest sold; and the complainant produced at the hearing an agreement by the purchaser to abide by the agreement for partition, and to execute releases under it. Held that performance of an agreement to execute a release of real estate may be decreed, and that performance may be decreed if the party asking it is able and willing, at any time before the decree, to perform his part of the contract.
    ' 2. It was referred to a master to ascertain whether the complainant was able to procure a release to P. from the present owner of H.’s share, and from the remaining heirs.
    
      3. Specific performance of an agreement among heirs for partition cannot be resisted on the .ground that the defendant, in taking the part assigned to him, contemplated the sale of it, and that by reason of mortgages existing at the time of the agreement he was unable to sell the part assigned to him, he knowing of the mortgages at the time of the agreement, and one of them, given by the intestate, being paid before the hearing, and the other, given by one of the heirs on his undivided interest in the whole estate, having been foreclosed and such interest sold, and the complainant proffering a release from the purchaser of all his interest in the share to the defendant. Held, that under the circumstances, the other heirs were not necessary parties to the bill.
    Peter A. Kipp died, intestate, leaving a widow, Mary Kipp, and five children, viz., Abraham Kipp, John Kipp, Henry Kipp, Peter Kipp and Mary Kipp, and leaving real estate, which descended to his said children. John Kipp sold his undivided interest in the real estate to his brother Abraham. An agreement in writing, under seal, was then made, dated May 17th, 1842, between Peter Kipp of the first part, and Abraham, Henry and Mary Kipp of the second part, reciting that they had mutually agreed' that Peter should have for his share of the real estate, all the out-lots; and that Abraham, Henry and Mary should take for their shares, (including the share Abraham had bought from John,) the homestead farm ; and agreeing that Peter and his wife should and would execute to the parties of the second part, separately, a release for the share which the parties of the second part might agree each one should have in the homestead, when the mortgage given by the intestate on one of the out-lots, for $1500, should be discharged, or such arrangement in relation thereto be made as should be satisfactory to Peter j and that as soon as Peter should execute such releases, the parties of the second part, with the wives of Henry and Abraham, should execute releases to Peter for the share w hich it was thereby agreed he should have.
    Peter took possession of the share assigned to him by the agreement.
    Mary afterwards married Benjamin P. Soper, and by an agreement between Abraham and Henry, and Soper and his wife, Abraham and Henry and their wives, by deed of January 5th, 1844, granted and released to Soper and his wife 52x“ acres of the homestead, by metes and bounds, as the share of Mary; and in consideration thereof, Soper and his wife granted and released to Abraham and Henry all the residue of the homestead.
    The $1500 mortgage was given by the intestate for the benefit of one Browning, and Browning gave the intestate a mortgage of the same amount on property in Hoboken.
    On the 19th October, 1841, Henry mortgaged his undivided interest in the real estate of the intestate to one Hall'for $1000, payable iu three years, with interest.
    The widow, Abraham and Peter administered on the personal estate of the intestate. They foreclosed the Browning mortgage, and in the spring of 1843, the Browning property was sold under the decree, and was bought by the administrators, or one of them, for the estate; and Abraham took a deed for it for the benefit of the estate, to pay off and satisfy the mortgage given by the intestate.
    On the 5th January, 1844, Soper and wife tendered to Peter a conveyance and release of all their interest in the out-lots, and requested him to release to them the share of the homestead which had been assigned and released to them by Abraham and Henry ; and presented to Peter the draft of a proper deed to be executed by him; and also presented to Peter a bond and mortgage for $1500, executed by Soper, conditioned for the payment to Peter of one-fifth of any sum that might remain due on the $1500 mortgage, in case of the insufficiency of the personal property and the Browning lands to pay the same. Peter refused to comply with the request.
    Soper and wife thereupon, on the 15th of April, 1844, filed their bil 1, stating the foregoing facts, and stating that Peter, as one of the administrators, has in his hands a considerable amount of money belonging to the estate; that the intestate left a large personal estate, and owed debts to a small amount only; and that no settlement of the administrators’ accounts had been made in the Orphans’ Court; that on the said purchase of the Browning property by Abraham, for the benefit of the estate, Abraham, acting for the estate, gave Browning the privilege of selling the property in such portions as might be most advantageous for the estate and for Browning; and that there had been paid on the said mortgage $600; and that the residue of the Browning property is sufficient, as the complainants are informed and believe, to pay the balance due on said $1500 mortgage given by the intestate.
    The bill prays that Peter may be decreed to perform the agreement, and to execute a release of the share so assigned to the complainant Mary ; the complainants tendering themselves ready to perform on their part, and to make such arrangement, in relation to the $1500 mortgage, as the court may direct, if that already made and offered should be decreed insufficient.
    The defendant put in his answer, and proofs were taken.
    Before the hearing of the cause, the $1500 mortgage was fully paid, and the mortgage given by Henry, on his undivided interest in the real estate of the intestate, had been foreclosed and his said interest sold under the decree, and Mrs. Howard had become the purchaser thereof. She knew, before she bought, of the agreement for partition, and of certain releases having been executed under it; and the complainants produced at the hearing an agreement executed by Mrs. Howard, dated June 5th, 1845, to abide by the agreement for partition, and to execute releases 'under it;
    P. D. Vroom, for the complainants,
    cited 1 Pow. on Mort. 18; 10 Johns. R. 414; 7 Paige 77; 8 Ibid. 473; 2 Wheat. 301, 304, note; 6 Mad. B. 161; Colbert on Parties 11; 3 P. Wms. 311; 1 Ves. and Beam 550.
    
      W. Pennington, for the defendant,
    cited 2 Story’s Eq., §§ 741, 742, 748-51, 769-74, 778; 2 Paige 15; 1 Pet. 283, 308, 383; 1 Green’s Ch. R. 199, 208; 18 Vesey 10; 3 Paige 94; 17 Vesey 398; 4 Bro. Ch. 619; Saxton 274, 281, 321.
   The Chancellor.

The bill is filed by Mary and her husband, to whom a share, by metes and bounds, has been assigned since the agreement, against Peter, to whom a share, by metes and bounds, was assigned by the agreement, to compel Peter to execute to the complainants a release of his interest in the portion assigned to them ; they having tendered to Peter a release of their interest in the share assigned to him.

It is contended, on the part of the complainants, that the agreement is distributive in its character, and binds Peter to execute to each of the other share-owners separately, a release of his interest in any share, whenever it should be set oft' by metes and bounds, by agreement between the other three; and that, as that has been done in reference to Mary’s share, the complainants are entitled to call on the defendant for a release of his interest in that share, without reference to any releases between Peter and the other share-owners. If this be so, there is no want of proper parties in the cause. I am inclined to think this is the true construction of the agreement.

The defendant alleges that his object in selecting the out-lots for his share was, that he might sell them, and that, by reason of the encumbrances, he could not immediately accomplish that object.

Two mortgages existed at the time of the agreement, and the weight of the evidence, to my mind is, that the existence of both was known to the defendant. This takes from the case all idea that the defendant was drawn into the agreement' by concealment from him of anything which, if known to him, might have prevented him from entering into it. The only ground left the defendant on this part of the case is, that he misapprehended the effect of Henry’s mortgage; and that, when he came to carry out his object in selecting the out-lots, he found himself embarrassed by that mortgage. The question' then arises, can the case be permitted to turn on proof of the object which the defendant had in selecting the out-lots ? Nothing is said of that object in the agreement. It would leave agreements for partition, and the action of a court upon them, to stand on very undefinable ground, if they could be influenced by proof of any particular object which one of the parties had in agreeing to take the part assigned to him, and that that object had failed.

The case, on this part of it, must stand on the same ground as if the defendant’s object was to keep the part selected by him. He agreed to take that part; and the court cannot look beyond that, and inquire whether he meant to keep it or to sell it. The defendant’s possession of the part he agreed to take has not been disturbed. By the agreement he was to release to the others, separately, the share which the others might agree that each of them should have in the homestead, when the mortgage given by the intestate should be discharged, or such arrangement relating thereto be made, as should be satisfactory to him. This mortgage has now been discharged; and it is not material, as to the relief prayed, that it was not discharged at the commencement of the suit. So as to the mortgage given by Henry, on his undivided interest in the real estate. If the defendant’s share has been relieved from the encumbrance of that mortgage; or, if the complainants are now able to procure a release to be executed to the defendant by the present owner of that undivided interest, of all the interest of that owner in the share taken by the defendant, the only object which the court can consider the defendant as having had in taking the share he selected can now be accomplished; and the time that has elapsed is not material. And if it can now be done, it is not material whether it was offered, or could have been done at the commencement of the suit, at least not as to the relief prayed.

A reference will be ordered, to ascertain whether the complainants are able to procure the release of Mrs. Howard, the present owner of Henry’s undivided share, of all her interest in the share assigned to the defendant, and to ascertain how the title now stands.

I think it better', also, in this stage of the cause, to direct the master to ascertain whether the complainants are able to procure the release of Abraham to be executed to the defendant.

If it shall appear that the complainants are able to procure the releases to be executed to the defendant, but that the defendant puts himself in a position to prevent their delivery to him, by refusing to execute proper releases himself, it appears to me that the case will call for such action of the court as will, notwithstanding, give the complainants the relief they seek. The question of costs is reserved.

Order accordingly.  