
    Charles W. Howard, Eliza M. Howard, James M. Howard, Samuel G. D. Howard, and Isabella Howard, Abraham J. Turwilliger and Minerva his Wife, Gilbert Turwilliger and Ann B. his Wife, James Burren and Sally his Wife, and John W. Allen v. George Babcock and Clarissa his Wife, Eliza A. Williams, Eunice Williams, Hannah E. Williams, Oliver S. Williams, and Hiram Weston.
    Administrators make a beneficial arrangement to rescind an unexecuted contract of the intestate, for the purchase of lands; chancery will not aid the heir to set it up again.
    This is a ease in chancery reserved in the county of Portage.
    The complainants, with the exception of John W. Allen, are the heirs at law of Horatio Howard and Harvey E. Howard, and Allen claims to be the assignee of the other complainants. The defendants are the heirs at law of Paul ^Williams, and with the exception of Geoi-ge Babcock and wife, are infants.
    It is unnecessary for the understanding of the principle decided by the court to give a full history of this case, as it appears upon the record. So far as material it will be done. It appears from the bill, answers, exhibits, and testimony, that on February 11, 1828, a contract was entered into between the said Paul Williams of the one part, and the said Horatio and Harvey A. Howard of the other, whereby Williams agreed to sell to the Howards, at and for the sum of five thousand dollars, his interest in certain town lots in the town of Akron, and also some land adjoining. The said sum to be paid as follows, to wit: one thousand dollars on May 1, 1828, with the interest from the first day of April preceding, and one thousand dollars upon the first day of May annually thereafter, until the whole should be paid, provided a certain contingency specified in the contract should happen. But if said contingency did not happen, then the balance of four thousand dollars to be paid in annual installments of five hundred dollars each, on the first day of May, commencing May 1, 1820.
    Tho Howards were to have the possession of a part of the premises, which was taken accordingly. It was agreed that on May 1, 1828, “ upon the payment of tho sum. of one thousand dollars,” Williams should execute a deed with lull covenant for the premises to the two Howards, who agreed at the same time to execute a bond and mortgage to secure the deferred paj^ments.
    No payment was made on May 1, 1828, and the reason assigned is, that on that day Horatio Howard lay dangerously sick, and continued for about ten days thereafter; at the same time Harvey E. Howard was absent from the country. Complainants allege, that Williams assented to the delay of payments, but of this there is no sufficient proof. It is in evidence, however, that at and after the said first day of May, he was anxious to receive payment. On the 17th day of the same month, he died after two days’ sickness, no payment having been made upon the contract, and no mortgage having been executed. Within three or four months thereafter, both the Howards died, no payment having been hitherto made.
    Owing to sickncsss and other causes, real property in Akron depreciated in value, and continued to depreciate until 1831 *or 1832. In March, 1829, the property sold by Williams the preceding year to the Howards, for five thousand dollars, and which, at the time of the sale, seems to have been no more than a fair price, was notworth more than three thousand, and could not, in the opinion of witnesses, have been sold for more than twenty-five hundred. Since 1832, it has been rapidly increasing in value, and is now worth from thirty to forty thousand dollars.
    After the death of the original parties, the administrators of Williams pressed those of the Howards for payment of the purchase money due upon the contract. Payment, however, was refused, upon the ground that if made the consequence would be that all the property of the Howards would be exhausted; and that the avails of these lands, in connection with other funds belonging to the estate, would not be sufficient to pay the contract price of the land and the other debts due from the estate. At length the administrators of the several parties entered into the following agreement, which was indorsed on the original contract: “Middlebury, March 30,1829. In consideration of three hundred dollars, by Isaiah Brown, administrator of Horatio Howard, and Isaiah Brown and Jonathan F. Finn, administrators of Harvey A. Howard, paid to Amos Shin, jr., and William Slater, administrator of Paul Williams, it is mutually agreed that the within agreement be wholly rescinded, and the same is hereby wholly and entirely rescinded, annulled, and the heirs and executors and admininistrators of the said Horatio and Harvey A Howard are entirely discharged from the observance and performance of the same.
    “Administrators of P. Williams, deceased, William Slater, Amos Shin, jr. Administrators of Horatio and Harvey A. Howard, Isaiah Brown, Jonathan F. Finn.”
    It was with much reluctance that the administrators of Williams entered into this agreement.' Nor did they do it until after consulting with the widow and only heir of Williams of full age, and the guardian and friend of the infant heirs. Charles W. Howard, one of the complainants, was also consulted and assented to the arrangement, but at the time he was a few months within age; at the time this arrangement was made, the land was worth but little, if any more than one-half the money Howard had agreed to pay for it, and the ^rescission was supposed to be highly beneficial to their estates, while it was equally injurious to that of Williams.
    After the rescission, the heirs of Williams took possession of the land, and it has since been partitioned among them.
    At the March term of the court of common pleas of Portage county, 1832, the administrators of the Howards filed their final settlement accounts, and the balance in their hands to be distributed was found to be about thirty-two hundred dollars.
    After the lands began to rise in value, Charles W. Howard, who had then become of full age, expressed regret that the contract had been rescinded, and this regreat seemed to increase in the same ratio with the increase of the value of the land. But he always spoke of the contract as one that had been rescinded or abandoned.
    The prayer of the bill is for a specific performance of the contract, and that the defendants may be decreed to convey to John W. Allen, who claims to have the beneficial interest in the contract, by assignment from those of his co-complainants, who are of full age, and from the guardians of such as are infants. It ought to be stated that the heirs of the Howards, at the time of their death, were either feme covert or infants, with the exception of one, and that a female.
    Wilcox, for the complainants:
    It can not be seriously insisted that the arrangement made between the administrators of the parties was in any respect binding upon the heirs. Upon the death of Williams, the legal title descended upon his heirs, and upon the death of the Howards, the equitable title descended to their heirs, and neither can be divested, except by the order of some court of competent jurisdiction. The interest of the Howards was real estate, and the administrators could not control it. 6 Johns. Ch. 398.
    Although Charles W. Howard was consulted, he was then a minor, and at "the time, and ever since, has been, doubtless, mistaken as to the powers of administrators. Since arriving at full age, he has done no act to confirm the arrangement made by the administrators. 5 Ohio, 150; 10 Pet. 58.
    The first installment was not paid when it became due, in consequence of the sickness of Horatio Howard, and since that time the situation of the parties concerned has been such *thal the contract could not be performed without the aid of a court of chancery. The complainants are not, therefore,» chargeable with laches.
    Powers, for defendants:
    There is-now no equity to set up this contract against the defendants. Courts of equity decree specific performance of contracts, when the action at law has been lost by the party seeking such performance, only in cases where it is conscientious that the agreement should be performed; and has the arrangement made on March 30, 1829, no bearing upon the question whether it be now equitable and conscientious to insist upon the performance of the contract of February, 1828?
    Circumstances were such at the time this arrangement was made, that had the adminhtrators of the Howards attempted to comply with the contract, the entire estate of their intestates must have been sacrificed; but by making the arrangements, they were enabled to save for the heirs more than three thousand dollars. Having received this benefit, it is not eonscionable that they should now, because eironmstances have changed, seek and receive a further benefit by disaffirming that arrangement, which, when entei’ed into, saved their estate from annihilation.
    But there is another view of the question, resting upon common and familiar principles, which is of great weight. The personal and legal representatives of Paul Williams had the same power and control over the contract on his part as he would have had if living. By the failure of the Howards to pay the first installment of one thousand dollars on May 1, 1828, and the refusal of their administrators in March, 1829, together with the probability of great delay, the representatives of Williams had a right to rescind the contract and resume the land. They did so, and the .act had the concurrence of all concerned. Sugden on Yendors and Purchasers, 439, mar. 511, top paging.
    The present complainants can be in no better situation than would the Howards had they lived. The case, then, would be this: The contract was made in 1828, one thousand dollars to be paid on the first day of May of that year, and the balance of four thousand to be paid in four or eight annual installments, depending upon a contingency. *The payment in May, 1828, was
    not made, and in March, 1829, payment still being refused, the vendor declares the contract at an end, and resumes the possession of the land. This conduct of the vendor is seemingly acquiesced in. The land in 1832 begins to rise in value, and continues rising until it is worth five or six times what it was when the contract was made. Still nothing is done by the vendor; no offer of payment; he lies by until 1835, and then files his bill for a specific performance. Under such a state of facts, a complainant would not, according to the rules of equity, be entitled to relief. 1 Mar. Ch. 417; 13 Vesey, jr. 225; Sug. Yend., 9 ed. 429; 6 Wheat. 528.
   Judge Hitchcock

delivered the opinion of the court

In the argument of this case, counsel for the complainant have labored to convince the court that the delay in paying the amount due upon this contract ought not to excuse the defendants from performance. And the strong reason urged is, that, owing to the death of the original parties, the stipulation of that contract could not have been complied with. There was a defense, however, on the part of those under whom the complainants claim, while all the parties to the contract were in full life. The first payment was not made when it fell due, and it is not a sufficient excuse to say that one of the vendors was then sick. The other being well, might have attended to the business. It would seem, however, that the vendor was not disposed to take any advantage of this default; for from anything that appears in the case, he was willing to the day of his death to have received this payment. After his death, although there would have been more difficulty in carrying the contract into execution, still it might have been done. Power is vested in the courts of common pleas to authorize administrators specifically to execute the contracts of their intestates relative to the realty. And in this case no reason is perceived why the execution of a deed might not have been compelled, upon making the first payment, and tendering a mortgage to secure the deferred payments. By payment of the whole purchase money, the execution of a deed by the representatives of Williams might have been compelled without any mortgage. In truth, the case shows that his representatives were urgent upon the subject, and would undoubtedly have been willing to have sought the aid of the court, in ^carrying into effect the contract, but for the refusal of the administrators of the Howards to make payment. That there has been gross and culpable negligence on the part of the Howards, and those representing and claiming under them, there can be no doubt. Whether this of itself would be sufficient to exonerate the defendants from performing, it may not be necessary for the purposes of this case to determine. There is one feature in the case which seems to us to be decisive of its merits.

On March 30, 1829, this contract was rescinded, so far as it could be, by the act of the administrators of the respective parties. This arrangement was manifestly most beneficial to the Howard heirs. At the time it was made, the,land was but about one-half as valuable as when purchased, and this value was constantly depreciating, and did depreciate for two or three years thereafter. Had the administrators of Williams insisted upon the purchase money, as they had a right to do, not only the other property of the Howards must have been exhausted, but the land itself must have been sold; and even then, if any reliance can be placed upon the testimony, the avails, in connection with the other assets in the hands of the administrators, would not have been sufficient to pay the original purchase money and interest. In the language of the defendants’ counsel, the estates of the Howards would have been “ annihilated,” and not one cent left for the heirs. Whereas, by making this arrangement, those estates were relieved from a heavy burden, and a property amounting to more than three thousand dollars secured to the heirs. This arrangement was altogether lavorable to the heirs of the Howards, and it was equally unfavorable to the heirs of Williams. At least it was so considered at the time, and for this reason his administrators were unwilling to enter into it, and did not do so, until after consulting his widow and all interested. Considering all these things, these complainants do not, so far as abstract justice is concerned, appear before this court under very favorable circumstances. Nor would they have appeared here but for the circumstances that these lands have greatly increased in value, and are now actually worth some five'or six times as much as they wore when purchased of Williams. This circumstance, however, is not one which will induce the court to look upon their case any more favorably; on the contrary, it might furnish a reason why we ^should not interfere. It seems to us clearly, that it would be altogether unconscionable to permit these heirs, who, so far as property is concerned, were saved from ruin by the indulgence of Williams’ administrators, now to enrich themselves at the expense of Williams’ heirs, and certainly the complainant, who claims as assignee, can be entitled to no other relief than are those under whom he claims.

But it is urged by complainants’ counsel, that these administrators have no right to rescind this contract. That here was an equity in real estate, which descended to the heirs, with which the administrators had no concern, and of which they could not deprive the heirs. Is this true ? To a certain extent it may be, but not, I apprehend, to the extent insisted upon. By our law, real as well as personal property is assets in the hands of administrators for the payment of debts. The only difference is, -that the personal property must first be exhausted. And further, that the real property can not be disposed of without an order of the court of common pleas, acting as a court of probate. Here was an equity which descended; but it was such an equity that it could not be made perfect, or draw after it the legal estate, without exhausting itself, the legal estate, and much more. It was valueless, and worse than valueless. Under such circumstances, an administrator having made such an arrangement as was made in the present instance, this court acting as a court of equity, would not be disposed to interfere. If these parties have any remedy at law, they can pursue it. If their legal remedy is lost, chancery ought not to grant them relief.

I am not prepared, however, to adopt the principle in its fullest extent, that an administrator can have no right to interfere with an equitable interest in lands. In the case of Livingston v. New;kii-k, 3 Johns. Ch. 316, the chancellor says, “an equitable interest founded upon articles for a purchase, and which a court of equity will specially enforce, is real estate which will pass by a devise subsequently made, and if there be no devise, will descend to the heir, and the executor must pay the purchase money for the benefit of the heir.” In the case of Champion v. Brown, 6 Johns. Ch. 402, he expresses doubts whether an administrator can assign such a contract, so as to vest any interest in the assignee without the assent of the heirs, and inclines to the opinion that he can not. These principles seem to be founded in reason, and are *substantially recognized in our statute defining the duties of executors and administrators, which treats equitable interests in land as real estate, and requires that they should be sold with the same formality. 29 Ohio Stat. 239.

Where lands are sold by articles of agreement, and not conveyed, the purchaser is held to be a trustee to the vendor for the purchase money, and the vendor is considered as holding the land in trust for the purchaser. But where the purchase money has been paid-, and the vendor refuses to make a deed, the purchaser has his election to resort to equity for a specific performance, or to a court of law to recover back the purchase money. And in case of the death of the purchaser, I see no objection to permitting his administrator under similar circumstances, if it be most for the interest of the estate, to sue for and recover the purchase money. And if he may do this, he may make any other arrangement with the vendor, which shall be beneficial to the estate of his intestate.

Again, this case shows that the administrators of Williams were pressing the administrators of the Howards for payment of that part of the purchase money which was due; but payment was refused; and the case further shows that these latter administrators were unable to pay. It is laid down in Sugden on Tendors, 9 ed. 439, that “ where circumstances are such that the purchase money can not be paid for a length of time, as if the purchaser die or become bankrupt before the contract be carried into effect, and his executors are not able to get in the assets or effects, the vendor is entitled to have the contract rescinded.” But counsel say Ibis should be by proceeding in chancery. Why go into chancery, when the representatives of the vendor are willing to rescind without? It can not be necessary. And it would be strange, indeed, that a court of chancery should decree the specific performance of a contract against those who had a right to rescind that contract, and who had, in fact, done all they could to rescind it.

Whether we consider this case upon the principle that this contract was rescinded by the administrators of the respective parties by an arrangement, under the circumstances, highly beneficial to the heirs of the Howards, or upon the principle last adverted to, it seems to the court that the defendants are entitled to a decree; the bill is, therefore, dismissed at the costs of the com'plainants.  