
    WILLIAM BREWER and others against JAMES CHURCH.
    Where the sons-in-law and an only son of a very aged man, without the participation of the wives of the former, and without the knowledge of the father, entered into a written agreement that they would divide all the property of the father equally among them, it was Held that on the father’s afterwards surrendering the personal property to the sons-in-law, and conveying the land to the son, a specific performance of the agreement against ■ the son, would not be decreed.
    
      Cause removed from the Court of Equity of Watauga county.
    Philip Church, a very aged man, in the year 1854, was living with his daughter Lucy, who intermarried with one Nathaniel Church. While residing there, five of his sons-in-law, Samuel Grier, Joshua Grier, William Brewer, Benjamin Ilartly and G. S. Lind, with his son, James Church, met together, and in his absence entered into an instrument of writing as follows: “ Whereas, the estate, now belonging to Philip Church, senior; we, the undersigned heirs of the aforesaid Philip Church, being present, do by his consent, take down an inventory of all the property now claimed by the aforesaid Philip Church, for which, we, the undersigned heirs, do agree to have, or make sale of, and divide the proceeds thereof, as we, the undersigned heirs, may hereafter agree on. This indenture, made and agreed on between us, to which we assign our names. This is tire amount of property now belonging to the aforesaid Philip Church, to wit: two negro men, one brown mare, one yoke steers and cart, six head of cattle, twenty head of hogs, nine head of sheep, together with about eleven or twelve hundred dollars in notes and accounts, with $20 cash on hand, together with all his lands. We, the undersigned heirs, being present for this cause and intent, the day and date above. Witness our hands and seals.
    (Signed,) James Church,
    his
    Wm. X Brewer, mark
    Joshua Grier, his
    Samuel X Grier, mark
    Bryan ITartly,
    G. S. Lind.”
    The said Philip was not present when this paper was signed by these parties, and has not, in any way, recognised the same. The bill alleges that, subsequently to the execution of this instrument, the defendant, James, took from his father, the said Philip, a deed for the above land, and sets np claim thereto, as his sole right and property, which, they say, was obtained by fraud and imposition. They allege that several other children of Philip Church, whose names are given in the bill, but who are not made parties thereto, have been advanced in full proportion to what they, plaintiffs and defendants, would receive under this arrangement; that finding James Church determined to hold on to what he could get under the deed, from his father, they took into their possession, and have divided among themselves the personal property mentioned in the instrument of writing above set out. The plaintiffs pray a specific performance of the contract above set out, and for a sale of the land mentioned therein, and an account of the rents and profits during the time it has been occupied by the defendant.
    The defendant answered, admitting the execution of the instrument set out in the plaintiffs’ bill, but says it was never intended between the parties to be enforced ; that his father, Philip, who is is still alive, but very old, fell under the control of a son-in-law, one Nathaniel Church, who was wasting his property, and this agreement was entered into as a means of getting it out of his hands ; that it was so far successful, that he gave up most of the personal property to the plaintiffs in full satisfaction of their shares of his estate, and that the deed to him was made with a like intention ; that his father often expressed an intention to give him three hundred dollars more than his sisters, and that the value of this land is not more in amount than that sum ; that, moreover, lie has taken the old man to his house and has maintained him for the last twelve months, and expects to do so for the remainder of his life ; that the deed was the voluntary act of his father, and that there was no fraud or imposition in this transaction. lie submits that a specific execution of the instrument, insisted on, would be harsh, unequal and unjust, both towards his father and himself.
    There were replication, commissions and proofs taken in the cause, and being set down for hearing, was sent to this Court.
    
      
      Folie, for the plaintiffs.
    
      Gaither, for the defendant.
   Battle, J.

Had the agreement, mentioned in the pleadings, been executed by all the children of Philip Ohurch, senior, or by all of them who had any further claims upon his bounty, and had provided for an equal division of his property among them with his consent, a very interesting question would have been presented, whether the Court of Equity would not have sustained it against any one of them, who should subsequently have obtained a conveyance from the father, inconsistent with it. It seems to be settled, that if two expectant devisees, or legatees, agree to divide equally, whatever devises or legacies they may take under the will of a particular devisor or testator, the argreement of one shall be regarded as a valuable consideration for that of the other, and the contract will be enforced in equity. Can the case, first supposed, be distinguished in principle from the second ? If so, can it, nevertheless, be sustained upon the ground of being a fair family arrangement ? These are interesting eu- ■ quiries, into which we will not enter, as we think the facts of the present case do not fairly present them. The instrument, by which the agreement of the parties is testified, purports to be executed by the “ heirs” of Philip Church, and provides for making an inventory and for a division of his property, real and personal, or of the proceeds thereof arising from the sale, the division to be made, “ as we, the undersigned may hereafter agree on.” The persons who signed the instrument, and who are, therefore, “ the undersigned,” are the defendant, who is a son, and some of the husbands of the daughters of Philip Ohurch; and the instrument concludes, “we, the undersigned heirs, being present for this cause and intent, the day and date above written.” It is manifest; upon the slightest inspection, that the instrument is open to the criticism of being very vague and indefinite as to when, how, and in what proportions the property, or its proceeds, were to be divided between “ the undersigned.” But waiving any objection of that kind, there is no mutuality in the contract, so far, at least, as it relates to the land ; about which alone, the bill seeks relief. The undersigned husbands have a very limited interest in the land, compared to that of their wives, who are not parlies to the instrument at all. Not being parties, the femes are not bound by the agreement made by their husbands, touching their real estate, and hence, there cannot be any mutuality between the defendant and the other parties to the arrangement. He could not obtain from them an equal division of the lauds by virtue of their contract, and on that account, a court of equity ought not to enforce a specific performance, against him, but ought to leave them to whatever remedy the law would give them for the breach of the contract by him.

The bill must be dismissed with costs.

Per Curiam, Bill dismissed.  