
    HIRAM HULMES v. MOSES THORPE.
    1. On a bill by a vendee for the specific performance of an agreement for the sale of lands, if the vendee has performed a valuable part of the contract and is in no default as to the performance of the residue, performance will be decreed.
    2. A slight variation or default, on the part of the vendee, in the performance of work to be done by him before the deed was to be delivered, will not prevent a decree for specific performance if the difference is a proper subject for compensation in money.
    3. In decreeing performance, the court may give a day and prescribe equitable conditions.
    4. Semble. That, as a general rule, the court will not make a decree that a husband who has contracted to sell lands shall procure his wife’s execution and acknowledgment of the deed.
    Bill for specific performance, filed August 7th, 1843. By articles of agreement dated March 19th, 1840, Moses Thorpe agreed to sell, and Hiram Hulmes to buy, a lot of land described in the agreement, supposed to contain forty-one and a half acres; and if it should not hold out, the quantity was to be taken from another lot of Thorpe’s described in the agreement, in a specified shape and position; Thorpe reserving the sawmill on the premises to be used for fifteen months from the date of the agreement; provided, that on whatever money, property, making of coal and labor that should be paid and performed by Hulmes on or before November 1st, 1840, no interest should be demanded; at which time the parties were to settle, and Thorpe was to deliver a good and sufficient deed, clear of all encumbrances, or as soon as half the purchase money was paid, when Hulmes was to give his bond and mortgage on the property for the balance, with interest, in two equal annual installments, Hulmes to be permitted to pay by cutting timber sufficient to make one hundred turns of coal of one hundred bushels each, on the northeast end of a lot of fifty acres of Thorpe’s, called the home lot, cutting the stumps low, and making the timber into as good coal as the timber and season would permit, and delivering the coal at the Russia forge and coal house, and stocking all that was not worked off the bank in the forge; for which Thorpe was to allow $3.75 for each hundred bushels, as payment on and for the land ; and Hulmes agreed to make and deliver from sixty to one hundred loads of said coal by November 1st, 1840, the two last payments to be made in the same way, by Thorpe’s finding timber not a greater distance from the forge than the land he bought of Ryerson and Sharpe. And Hulmes was to cut, draw, and saw, at the mill, such stuff as Thorpe might direct, and deliver at the mill to Thorpe, properly stuck, half the boards, plank and scantling of all the logs, on whatsoever land he should cut off, for the said coal wood.
    By a supplement to the agreement, and as an explanation of the understanding of the parties, it was provided that Hulmes was to commence delivering coal on or before September 1st, 1840, and to continue to deliver coal sufficient to keep one fire at the forge in operation.
    On the execution of the agreement, Thorpe delivered possession to Hulmes. Hulmes began to deliver coal September 1st, 1840, and continued to deliver coal, and before November 1st, 1840, delivered (as the bill states) sixty turns, equal to six thousand bushels, amounting, at the stipulated price, to $225. And the bill states that on the said first of November, 1840, Thorpe, the defendant, was indebted to Hulmes, the complainant, for work and labor, oats, and the use of the barn ; and that on that day, he, the complainant, went to Thorpe’s house for the purpose of having a settlement, but that Thorpe had gone to Illinois.
    In the following season, Hulmes continued to make and deliver coal at the forge; and on or before November 1st, 1841, had delivered, (the bill states,) including that delivered the preceding year, 9150 bushels, amounting to $343.12|-. And the bill states that the complainant had a further account against the defendant, which, with the account before mentioned and the coal delivered, amounted to $350, the first payment, and the interest on so much thereof as remained unpaid on the 1st of November, 1840.
    The bill states the performance, on complainant’s part, of the other terms or items of the agreement, stating, as to the sawing of the logs, that Thorpe neglected to give him directions as to how they should be sawed, till June, 1843, when the water had become too low to saw, and that it remained too low till the filing of the bill. And the bill states that Hulmes has, several times, called on Thorpe to furnish the timber from which to make the coal for the residue of the purchase money, and that Thorpe has neglected to do so.
    On the 4th of October, 1841, the parties made another agreement, for the sale by Thorpe and the purchase by Hulmes, of another lot of 100 acres, called the Allen lot, and also the remaining part of the house lot, containing 70J acres, called the Rorick survey, except the part thereof before sold by Thorpe to Hulmes, the consideration for the last sale being $1200, $100 of which, Thorpe acknowledges to have then received, the balance, $1100, to be paid as follows: $100 on the first of
    November, 1841, when Thorpe was to make a good and sufficient warrantee deed, clear of all encumbrances, and Hulmes was to give his five bonds, of $200 each, payable on the 1st of November, 1842,1843, 1844,1845, and 1846, with interest, and a mortgage on the premises, executed by him and his wife to secure the same; and this agreement contained a provision that if any claim should arise, or any prosecution be commenced on any claim that then existed against the lands, whereby Hulmes should be put to any damage, Thorpe would pay the same, and that, if judgment should be obtained against the land by reason of any claim then existing, whatever Hulmes should pay, not exceeding the yearly payments, Thorpe should allow as so much paid on this agreement. That, on the execution of this agreement, Thorpe delivered to Hulmes the possession of the premises, Hulmes then paying him $100. On the 23d of November, 1841, Hulmes paid to Thorpe the second $100, which Thorpe received as of the 1st of November, 1841, (the bill stating that Hulmes made inquiry for Thorpe on the 1st of November, 1841, and could not find him, he having gone to Illinois.) The bill states that, on paying the second $100, Hulmes offered to give the bonds and mortgage, on Thorpe’s giving the deed, and that Thorpe refused so to do, but offered a deed executed by him alone, and not by his wife, and which was also defective in the description of one of the lots;
    
      and that Hulmes, for these reasons, declined taking the said deed.
    The eomplainant has continued in possession of the premises, and, the bill says, has greatly improved the same, and has frequently requested Thorpe to perform the several contracts, and offered to perform on his part, if Thorpe would comply.
    In--,-Thorpe brought ejectment against Hulmes, to recover possession of the lands mentioned in both agreements. The bill states that, on the 28th of July, 1843, Hulmes tendered to Thorpe $221, the amount for which the first bond was to be given, under the second agreement, and the interest thereon, .and four bonds and mortgages, according to the terms of that agreement, and also another bond, dated July 25th, 1843, for $350, and interest from November 1st, 1840, payable in coal, according to the first agreement, in two equal annual payments, from said July 25th, 1843, and a mortgage on the lands in the first agreement mentioned, executed by Hulmes and his wife to secure the same, and thereupon requested the deed for said several lots, and that Thorpe replied that he was not ready, and never would be prepared to give a deed executed by his wife, saying he had been divorced from the woman who was formerly his wife.
    The bill prays a specific performance of the said two agreements, and that a deed, executed by Thorpe and his wife, may be decreed to be delivered to the complainant, sufficient to convey the lands, free from all encumbrances, and an injunction against the ejectment.
    The injunction was allowed.
    The defendant put in his answer, to which a replication was filed, and testimony was taken on both sides.
    The cause was brought to a hearing on the oleadings and proofs.
    
      W. Halsted, for the complainant.
    He cited 1 Vesey 446, 450; 1 Atk. 12; 1 Sim. & Stu. 500; 2 lb. 29; 6 Wheat. 528, 534; 5 Cranch 262, 274; 9 lb. 456; 1 Stra. 555; 1 Term. Rep. 638; 1 Fonb. Eq. 185 (note), 190, 191; 2 Story’s Eq., § 717 (a), 747, 771, 775; 7 Vesey 474.
    
      P. D. Vroom, for the defendant.
    He cited 2 Wheat. 336; 2 Scho. and Lef. 553, 554; 18 Vesey 10; Saxton’s Ch. 281; 2 Story’s Eq., § 769, 776; 12 Vesey 395; 1 Coxe’s Ch. 258; 6 Vesey 349; 1 Pet. Rep. 383; 5 Vesey 720, note; 15 Ibid. 228; 1 Ball and Beatty 68; Newland on Cont. 242; 2 Story’s Eq., § 731-4, and note; 1 Mad. Rep. 9 4 Bos. and Pul. 267.
   The Chancellor.

By the first agreement, that of March 19th, 1840, Thorpe was to convey a lot of forty-one and a half acre», as described in the agreement; and, if it fell short, was to make up the quantity from another lot described in the agreement ; and was to make the conveyance as soon as Hulmes should pay him $700, with interest from April 1st, 1840, except that no interest was to be demanded on the amount that Hulmes should pay in money, property, making coal and labor on or before November 1st, 1840, at which time the parties were to settle, and Thorpe was to deliver a good and sufficient deed, clear of all encumbrances, or as soon as half the purchase money should be paid, when Hulmes was to give a bond and mortgage for the balance, with interest, in two equal annual installments ; Hulmes to be permitted to pay by cutting timber and making one hundred turns of coal, of one hundred bushels each, on a lot of fifty acres of Thorpe’s, called the house lot, and delivering the coal at the Eussia forge; for which Thorpe was to allow $3.75 for each hundred bnshels, as payment on the land ; and Hulmes agreed to deliver from sixty to one hundred loads of coal by November 1st, 1840. The two last payments were to be made in the same way, Thorpe finding timber not a greater distance from the forge than the land he bought of Eyerson and Sharpe. Hulmes was to commence delivering coal on or before Septemoer 1st, 1840, and to continue to deliver coal sufficient to keep one fire at the forge in operation. There are several minor particulars in this agreement, which may be noticed hereafter.

On the execution of the agreement, Thorpe delivered possession to Hulmes. It will be observed that, by this agreement, Hulmes was not required to pay half of the purchase money by November 1st, 1840. He was required to deliver from sixty to one hundred loads of coal by that day; on which day, or as soon as half the purchase money was paid, Thorpe was to make the deed, and Hulmes to give the bond and mortgage. The answer admits that Hulmes commenced delivering coal on the 1st of September, and continued so doing up to November 1st, 1840, but says that Thorpe does not believe that the amount delivered before that day exceeded 4250 bushels. The bill states that sixty turns, equal to 6000 bushels, were delivered before that day. There is no complaint that Hulmes did not deliver, between these periods, sufficient to keep a fire in the forge in operation ; and the difference between the defendant’s belief as to the quantity and the statement of the bill arises from Thorpe’s belief as to the number of bushels contained in a turn. From the statement in the bill, 4250 bushels would make sixty loads, of seventy bushels and a fraction each.

The answer admits that, in 1841, Hulmes continued to deliver coal till on or before November 1st, 1841, but says that he, the defendant, does not know how much was delivered before that day, but' believes it did not exceed 6400 bushels, and that he has no means of ascertaining the quantity more definitely. The bill states that the amount delivered, in all, on or before November 1st, 1841, was 9150 bushels, amounting, at the stipulated price, to $343.12J; and that, before November 1st, 1840, the complainant had an account* against the defendant, for work and labor, oats, and the use of the barn, amounting to $17; and that, on the 1st of November, 1841, he had á further account against the defendant, and that these accounts, added to the coal delivered before November 1st, 1841, amounted to $350, the half of the purchase money, and the interest due by the terms of the contract.

The defendant admits that, on the 1st of November, 1840, he was indebted to Hulmes for work and labor, but not exceeding three dollars, and says he is unable to state the amount more definitely; and that, before that day,-he had procured from Hulmes ten bushels of oats for seed, on the understanding and agreement that the same quantity should be furnished to Hulmes in the spring of 1841, for seed, or otherwise; and that, before November, 1840, he hired of Hulmes half his barn for five dollars, to be paid April 1st, 1841; and that he believes that complainant’s accounts against him, except for coal, did not exceed fifteen dollars, and that he has no means of ascertaining the amount more definitely. Thorpe admits that he left the state, for the State of Illinois, about the 1st of November, 1810, but says he cannot state more definitely the day he left. I am satisfied, from the answer and the testimony, that he left before the 1st of November, 1840. In March, 1841, Thorpe returned to this state, and Hulmes went on to deliver coal in the season of 1841, as before stated.

The bill states that on the 23d of November, 1841, the complainant offered to give the bond and mortgage, according to the contract, on Thorpe’s giving the deed, and that Thorpe refused to do so, hut offered a deed executed by him alone, and not by his wife, and which was also defective in the description; and that the complainant, for these reasons, declined taking the deed, and that the complainant has frequently requested Thorpe to perform, and offered to perform on his part, if Thorpe would comply on his part.

Thorpe admits that he offered Hulmes a deed for the premises, executed by him alone, and also defective in the description, and that Hulmes refused to receive it, on the ground of the defective description, and says that this was on or about November 1st, 1841; but he says he does not recollect whether or not, and does not believe that Hulmes refused to receive the deed on the ground, or alleged that the defendant had a wife who ought to execute the deed. The answer further says that on the 7th of July, 1842, the complainant, with his, the defendant’s, consent, caused a deed to be prepared for the purpose of sending it to Indiana, to be executed by one Annis Thorpe, formerly his wife, and that he sent it accordingly, but that he did so, not in compliance with any obligation on his part, but only to satisfy the complainant. He says that on the 14th of September, 1843, since the filing of the bill, he received, by mail, the said deed, executed and acknowledged by the said Annis, and that he showed it to the complainant on the 16th of October ; and he admits that the said deed, or any other deed executed by the said Annis, was never, before the filing of the bill, offered to the complainant, though he says that on said October 16th he offered to deliver the said deed to the complainant, with a proper deed executed by him, and requested the complainant to pay the money due him on the agreement. He says that said Annis deserted him on or about December 1st, 1836, &c.

He says that on or about January 14th, 1843, he delivered to the complainant, in the street, near the complainant’s house, a notice to fulfill the contract or give up possession, and requested him to receive a deed for the premises; and that, at that time, he tendered a deed duly executed and acknowledged by him, giving a correct description of the premises, and containing the usual covenants, and sufficient, as he is advised and believes, under the said agreement, and that he informed the complainant of the contents thereof, and that the complainant might have seen the same if he had chosen to do so; and that he thereupon requested the complainant to perform on his part. He admits that on that occasion the complainant asked him, and Webb, who was with him, to walk with the complainant into the house, but denies that the complainant said he would arrange the business then. He admits that on the 28th of July, 1843, the complainant requested him to deliver a deed, and Insisted that the agreement required the conveyance or release of Annis Thorpe, and that he, the defendant, replied that he was not and never would be prepared to give a deed executed by the said Annis; and stated that he had no wife, entitled to dower, and that he thereupon offered the complainant a deed duly executed and acknowledged by him, on the payment of the money due, and the execution of the bond and mortgage. He admits that he has insisted, and he now submits, that after the lapse of time which has occurred, the consideration mentioned in the contract should be paid in money. He says that on or about July 1st, 1842, the complainant, for the first time, as far as he recollects, and as he believes, declared he would not comply, unless he, Thorpe, would procure a deed executed by said Annis, and insisted that the agreement required such a deed, and the defendant insists that no such deed was required by the agreement.

Among the exhibits on the part of the defendant is a deed, dated July 7th, 1842, between Thorpe, of the first part, and Hulmes, of the second, purporting to have-been executed by Annis Thorpe, by her mark, with a certificate of a justice of the peace of Indiana annexed, that Annis Thorpe, wife of Moses Thorpe, acknowledged, &c., (in the usual form of acknowledgment by a married woman.) This certificate is dated August 18th, 1843. There is also annexed to this deed a certificate of the mayor of Madison, in Indiana, dated April 16th, 1844, that on that day Annis Thorpe acknowledged, &c., (in the usual form,) that she executed the deed, stating that she had acknowledged it before, and that she understood the first acknowledgment was illegal in New Jersey.

From the case, as thus far developed, it seems to me to be plain that the complainant is entitled to a specific performance of this agreement. He has performed a valuable part of the contract, and so far as yet appears, is in no default as to the performance of the residue, unless his declining to take a deed without the execution of it by Thorpe’s wife is a default.

The question whether the court will decree that a husband shall procure his wife to join in a conveyance, has been spoken to in this case. If it appears that the wife objects, I do not see how the court can make such a decree. If a vendor asks specific performance of an article like this, stipulating for a good and sufficient deed, clear of all encumbrances, the court would not compel performance by the vendee, unless the wife joined in the deed. And where the vendee asks performance, and it, appears satisfactorily that the wife of the vendor refuses to join, the result would only be that the vendee would have his election, to take a deed without the wife’s signature, or resort to his action at law for breach of the agreement. But in this case it is contended, on the part of the vendee, that inasmuch as it appears that the wife is willing to execute the deed, her willingness having been shown by her twice acknowledging the deed so as aforesaid exhibited, there can be no objection to a decree that a deed be given by Thorpe’s wife.

According to the doctrine of this court, a decree that a thing be done puts the party in the same position as if it was actually done, though it be refused. It may be that the wife’s acknowledgment of the deed in this case should be considered as equivalent to her express consent to execute it, and that on this ground the court would be justified in making a decree that Thorne deliver a deed executed by him and his wife. But it would be safer for the court to decree the delivery of the deed already executed by her and perhaps it would be safer for the complainant.

As to the difference between the parties in reference to the amount of the coal delivered and the accounts of Hulmes and Thorpe on the 1st of November, 1841, it is very small; and even if there was a slight deficiency, it would not prevent a decree, for the” difference could be compensated in money. But in this case it seems to me that the complainant honestly thought and still thinks, that the coal delivered, and his accounts against Thorpe for property and work and labor, under the terms of the agreement, amount to the sum, on the payment of which, he was to have the deed.

It was admitted in argument that if Hulmes put himself on the ground that he had paid half, and would do no more till he got the deed, and the proof sustained him, his position would be good. Thorpe had gone to Illinois before November 1st, 1840, and the settlement contemplated by the agreement to be made at that time could not be made; and there is evidence, 1 think, sufficient to show that Hulmes went to Thorpe’s that day for the purpose of making such settlement.

Again, the bill states that on the 23d of November, 1841, the complainant offered to give the bond and mortgage, according to the contract, on Thorpe’s giving the deed; and that Thorpe offered a deed executed by him alone, and also defective in the description, which Hulmes, therefore, refused to accept. The defendant admits that about the 1st of November, 1841, he offered such a deed, and that Hulmes refused it.' No objection was then made by Thorpe that Hulmes was not entitled to his deed because he had not paid half. No settlement was asked by Thorpe, to see if Hulmes had paid half, but a deed confessedly defective was offered. If a good deed had been offered, a settlement might then have been gone into; and if it had appeared that Hulmes had not paid halfj he could have paid the balance of the half in money.

The answer admits that in or about March, 1842, the complainant called on the defendant and requested him to furnish the timber from which to make more coal, insisting that he had already made coal to the extent alleged in the bill, which the defendant says he did not then, and does not now admit. Why was not a settlement then gone into, as to what amount had been delivered ? Did the defendant then deny the complainant’s Statement? There is no evidence that he did.

Again, the defendant says that, on the 14th of January, 1843, in the street, near the complainant’s house, he tendered a deed, executed by him, giving a correct description, and informed the complainant of the contents thereof, and that complainant might have seen it, if he had chosen, and that he thereupon requested the complainant to perform on life part; and he admits that, on that occasion, the complainant asked him to walk into the house, and that he refused to go in. Here was another proper occasion for a settlement as to the amount that had been paid, and, if it had turned out that Hulmes had not fully paid the half, he could have paid the balance in money.

Again, the defendant admits that, on the 28th of July, 1843, the complainant requested a deed, and insisted on a deed executed by Annis Thorpe, and that he replied that he never would be prepared to give such a deed, and tendered a deed executed by him. No difficulty seems to have been made, at any time, as to the amount that had been paid. Hulmes claimed that he had paid the half, and I see no reason to doubt that, if there had been no difficulty about the deed, and, on a settlement, at any of these periods, it had appeared that there was still due a balance on the half, Hulmes would have paid it in money. I think that Hulmes is in no such default, in this respect, as should induce the court to deny him a specific performance. The case, in this part of it, as to the general question, whether performance should be decreed, must stand on the same ground as it would if Hulmes had confessedly paid the half.

There is no difficulty arising from lapse of time, in this case. The agreement was made in March, 1840, and the bill was filed in August, 1843; and I see no such change of circumstances as should induce the court to refuse a decree. It would occupy too much time and space to examine, particularly, the complaints of the defendant as to the alleged minor defaults of the complainant, and the testimony respecting them. The items in reference to which the defendant complains that the complainant did not perform the contract, are — that the greater part of the stumps were not cut low; that the coal was not made as good as the timber and season would allow; that, as near as he can state, and as he believes, a quarter of the coal not worked off the bank at the forge, was not stocked; that the complainant did not cut and draw to the mill all the saw-logs, though he admits he cut and drew a large proportion of them. The defendant denies that the complainant was ready or willing to saw the logs and deliver half thereof, stuck, at any time prior to December, 1842, and says that, during the years 1841 and 1842, he frequently requested the complainant to draw and saw them, and directed him into what stuff to saw them. That in March, 1842, he directed the complainant to saw timber for a small frame house, according to a bill to be furnished by De Wolf, and that he is informed and believes that the bill was furnished in May or June, 1843. He admits that, except this, he has not given the complainant any directions as to the sawing of the logs. He says that the water in the stream has been, at all times, sufficient, since March, 1843, to drive the mill and saw all the timber.

No such default, in any of these respects, is shown, as should prevent a decree for performance. A slight variation or default is not important, if the difference is a proper subject of compensation in money. 2 Moll. 583; 7 Monro 142. And as to all these matters, I think the weight of testimony is so strongly in favor of the complainant, that I should be unwilling to delay the cause, with a view of ascertaining whether the complainant, before a decree should be made for the specific performance of the agreement, should not make compensation for defaults, in some of these particulars. Again, the defendant, after all these alleged defaults, offered to deliver a deed executed by himself.

The second article was an agreement to convey for a money consideration of $1200, $100 of which was paid on the execution of the article, and the balance of which was to be paid as follows: $100, November 1st, 1841, when Thorpe was to make a good and sufficient warrantee deed, clear of all encumbrances, and Hulmes was to give his five bonds, for $200 each, payable on the 1st November in each of the five following years, with interest, and a mortgage on the premises, executed by him and his wife, to secure the same. On the execution of this agreement, and the payment of $100, Thorpe delivered possession to Hulmes. On the 23d November, 1841, Hulmes paid the second $100, and Thorpe received it as of the 1st November, 1841.

The bill states that, on paying the second $100, Hulmes offered to give the bonds and mortgage, on Thorpe’s giving the deed; and that Thorpe offered a deed executed by him alone, and not by his wife, and which was also defective in the description ; and that Hulmes, for these reasons, declined taking the deed. Thorpe admits that on or about November 1st, 1841, he offered Hulmes a deed for the premises, executed by him alone, and also defective in the description, and that Hulmes declined receiving it, on the ground of the defective description; and the defendant says he does not recollect whether or not, and does not believe,, that Hulmes refused it on the ground, or alleged that the defendant had a wife who ought to execute the deed.

Thorpe says that on or about July 1st, 1842, the complainant for the first time, as far as he recollects, and as he believes, declared he would not comply unless he, Thorpe, would procure a deed executed by the said Annis, and insisted that the agreement required such a deed. He says that on the 14th January, 1843, he tendered to the complainant, in the street near the complainant’s house, a deed duly executed and acknowledged by him, giving a correct description of the premises, and informed the complainant of the contents thereof; and that the complainant might have seen it if he had chosen to do so; and that he thereupon requested the complainant to perform on his part. He admits that on that occasion the complainant asked him and Webb, who was with him, to walk into the house, as stated in the bill, but denies that the complainant said he would arrange their business then, as stated in the bill.

It thus appears that it was not till January 14th, 1843, that Thorpe offered a deed with a correct description. The bill states that on the 28th July, 1843, the complainant tendered to Thorpe $221, being the $200 and interest thereon for which the first bond was to be given, and four bonds and a mortgage, according to the terms of the agreement, and thereupon requested the deed; and that Thorpe replied that he was not and never would be ready to give a deed executed by his wife. The defendant admits that on that day the complainant requested a deed, and insisted that the agreement required the conveyance or release of the said Annis j and that he made the answer stated in the bill. And he admits that on that day the complainant stated that he then and there had $221, as the amount of the second payment and interest thereon, and the four bonds and mortgage, as stated in the bill, and says that he thereupon requested the complainant to allow him and another person to count the money and examine the papers; and that the complainant refused to allow him and such other person to do so; and he denies that the complainant otherwise offered to perform, or otherwise tendered, &e., and says he has no knowledge or information of the contents of the said papers, except from the statement of the complainant j and that if they were tendered, they were not, with the said money, a sufficient compliance with the agreement; and that he was not bound to accept them.

He says that on the 7tb July, 1842, the complainant, with his consent, caused a deed to be prepared for the purpose of sending it to Indiana, to be executed by the said Annis ; and that he, at complainant’s request, immediately sent it; that he did so, not in compliance with any obligation on his part, but solely as a gratuitous act, at complainant’s request, and to satisfy him. That since the bill was filed, he received the deed, executed and acknowledged by the said Annis; and he admits that no deed executed by the said Annis was ever offered to the complainant before the filing of the bill. This is the same deed spoken of and described in that part of this opinion which relates to the first agreement, it being, or purporting to be, a conveyance, in one deed, of the lands described in both agreements.

The statement of the foregoing facts in reference to the second agreement is sufficient, I think, to show clearly that there is nothing in the way of the relief sought by the bill as to this agreement, except the difficulty as to the form of the decree growing out of the fact that the defendant has a wife. In reference to this, the view taken in considering the course to be adopted on the first agreement applies here.

I am of opinion that, in reference to both contracts, the complainant is entitled to the relief he seeks. What mode shall be prescribed for the performance, on the part of the complainant, of the first agreement ? It is said that in suits for specific performance, the court may modify the agreement so as to do justice, if circumstances require it. 1 Peters 376. I do not see that justice, in this ease, requires any modification except as to time, nor does it appear that the circumstances of the defendant, in reference to the stipulations of the agreement, are so changed as to require a different mode of payment from that contracted for by the complainant.

There is no reason to believe, from anything appearing in the case, that the defendant has not timber land within a proper distance from which to make coal. We are relieved, therefore, from the difficulty which might have been presented if the defendant, since the agreement, had sold his timber lands. And as to time, if the complainant is to perform by making coal, one and two years would be reasonable; and if money payments are to be substituted, the same time would be reasonable. In decreeing performance, the court may give a day or prescribe equitable conditions. 1 A. K. Marshall 162.

The complainant could not tender in money under this contract } but the defendant submits, in his answer, that if performance be decreed, the decree should direct the payments to be made in money. I do not feel satisfied, under the evidence in the case, to give such a direction against the consent of the complainant; but it might prevent much future trouble and vexation to the parties, and perhaps to the court, if the complainant will consent to it.

A reference to a master will be necessary, to ascertain whether there is any balance due Thorpe for the half of the consideration on the first contract. If there is, that balance should be paid in money.

Decree for complainant.

Cited in Peeler v. Levy, 11 C. E. Gr. 335.  