
    [Philadelphia,
    December 29, 1828.]
    In the Matter of the Petition of HENRY SHOEMAKER.
    Where, in a deed conveying land, and reserving a rent charge, the grantor covenants, upon the grantee paying, within seven years, a gross sum, together with all arrearages, &c„ to release and .discharge the rent, the grantee cannot, after the lapse of eighteen years from the time prescribed in the deed, call upon the grantor to perform his covenant.
    This ease came before the court on a petition presented by Henry Shoemaker, under the act of assembly of the 5th of February, 1S21, entitled, “A further supplement to an act entitled, £An act to enable executors and administrators, by leave of court, to convey lands and tenements, contracted for with their decedents, and for other purposes therein mentioned, passed the thirty-first day of March, 1792.’ ”
    The petition, in substance, set forth John H. Brinton, and Jonathan TV. Condy, of the city of Philadelphia, Esqrs., by their deed of the 7th of May, 1803, granted to Henry Hurst, in fee, a certain lot of ground, situate on the south side of Sassafras Street, between Del fare Eighth and Ninth Streets, in the said city, reserving to the &iantors, their heirs and assigns, a ground rent of fifty-three dollars, and thirty-three cents per annum: That, by the said deed, it was provided, ££ that if the said Henry Hurst, his heirs and assigns, should, at any time within seven years, pay or cause to be paid, to the said John H. Brinton and Jonathan TV. Condy, their heirs and assigns, the sum of eight hundred and eighty-eight dollars, and eighty-four cents, and all arrearages of rent to the time of payment, then the same should, for ever thereafter, cease and be extinguished, and the covenant, upon payment thereof, should become void, aftd then they, the said John H. Brinton, and Jonathan TV. Condy, their heirs and assigns, would execute a release and discharge of the said yearly rent, to the said Henry Hurst, his heirs and assigns for ever: That the said John H. Brinton and Jonathan TV. Condy, for themselves, their heirs, executors, and administrators, covenanted that the said Henry Hurst, his heirs and assigns, paying the rent and taxes, or extinguishing the same, and performing the covenants, should hold the said lot of ground, and receive the rents and profits thereof without molestation from the grantors, or any persons claiming under them: That, by sundry mesne conveyances, the title to the said rent charge became vested in John PCoxe, who died, having appointed Daniel TV. Coxe, Joseph Peed, and John Watmough, his executors: That the petitioner had become legally seised in fee of the said lot of ground, subject to the covenants running with the land, as contained in the above deed to Henry Hurst: That the conveyance of the said lot of ground, upon the condition that he would pay the sum of eight hundred and eighty-eight dollars and eighty-four cents, to the grantors, within seven years, the petitioner conceived to be, in equity, a mere loan of money by the pledge of the estate, in the nature of a mortgage: That the covenant to pay the said sum of money, by the said Henry Hurst, could now be substantially performed by the petitioner, according to the real intent and meaning of the parties: That the deed contained no provision restricting the said Henry Hurst, or his assigns, as to the time of paying the said sum of money; but, only, that he should not be called upon, by them, to pay it within seven years; and, on the contrary, it was provided, that if the said Henry Hurst, his heirs or assigns, should extinguish the said rent, they should hold the lot freely, peaceably, and quietly for ever; and take the rents and profits thereof, without any molestation, interruption, or eviction of the grantors, or their heirs, or any other persons claiming under them. The petitioner, therefore, prayed the court to make an order, authorizing and requiring the executors of John D. Coxe, on payment to them of the arrearages of the said rent, with the interest that might be due thereon, together with the additional sum of money mentioned in the deed, to make and execute a sufficient release or discharge of the said yearly rent, to the petitioner, according to the true intent and meaning of the parties.
    Upon this petition, a citation issued to the executors of John D. Coxe, returnable on the I5th of December, 1828, to answer the complainant on his petition.
    
      Davis,- for the complainant.
    
      Reed, for the respondents.
   Per Curiam.

The petitioner insists on a right to redeem, after the lapse of eighteen years from the period fixed by the parties, on the ground, that, in equity, time is not of the essence of the contract. It is, however, clearly so here. The rent charge happens to be of more value now, than the sum prescribed in the conveyance to be paid for it. Hurst stipulated for seven years, in which to make his election, and the petitioner, claiming under him, demands twenty-five. No compensation is offered, nor could we enforce the acceptance of it, without driving the respondents into a new contract. Had the rent charge been of less value than the money, the petitioner could not have been compelled to redeem; and his prayer is, therefore, manifestly inequitable.

Petition dismissed.  