
    Coos,
    June 26, 1909.
    Fidelity and Deposit Co. v. Buckley.
    Bill in Equity, praying for the specific performance of an agreement to mortgage real estate. Transferred from the December term, 1908, of the superior court by Pike, J.
    
      
      Daniel J. Daley and Herbert I. Gross, for the plaintiffs.
    
      Rich Marble and Edmund Sullivan, for the defendant.
   Walker, J.

This is a bill in equity for the specific performance of an agreement to mortgage real estate. The court dismissed the bill and transferred the question whether there was error of law in so doing. The title to the land in question is in the defendant’s wife, who is not a party to this proceeding. Before she acquired her title the land was attached upon this bill in equity as the property of the defendant, who then had a record title. So far as appears from the case, his wife took her title subject to the attachment and is entitled to preserve it by satisfying the plaintiff’s claim for damages by the defendant’s alleged breach of his contract. Upon the present state of facts, a decree for specific performance would not be equitable.

Case discharged.

All concurred.  