There was, it is true, a great lapse of time after the making of the contract, and its maturity according to its terms, before the bringing of this suit to enforce its performance. The petition, however, sufficiently explains the delay ; and, as there is no statement of facts, we must presume, in favor of the judgment, its averments were supported by evidence.
The bund is, substantially, a contract for the conveyance of land. In such cases “ Courts of Equity look to the substance “ of the transaction, and the primary object of the parties ; “ and where that requires a specific performance, they will treat “ the penalty as a mere security for its due performance and “ attainment,” (2 Story Eq. Sec. 715.) Such a contract cannot be discharged at the pleasure of the obligor, by the payment of the penalty, or damages ; but entitles the obligee to demand a conveyance of the land at all events. (Hemming v. Zimmerschitte, 4 Tex. R. 159.)
The contract was substantially a sale of land. It bound the defendant’s intestate to convey, and entitled the plaintiffs to *4demand a conveyance, of a fourth of a league of land out of the headlight of James Foster. The conveyance was to be made within two years : and at the time of making the contract, the obligor doubtless supposed he would be able to obtain a patent and make a title to his vendees within that period., But in this he was mistaken. His right to his location was contested; and after litigating the right, he was finally compelled to abandon his first, and make a second location. He did not finally obtain his patent until 1854. Until the patent was obtained, he could not make title; and when it had been obtained, the plaintiffs lost no time in prosecuting their claim. They brought suit to obtain a title in the same year. The plaintiffs might have brought their suit for damages for the breach of the contract, after the expiration of the time limited for performance. But they were not obliged to do so. They had the right to treat the contract, as in substance it was, a contract to convey land; and to demand a conveyance at all events. The inability of the obligor to make a title at the time appointed, did not deprive them oí their right. It did not have the effect to oblige them to resort to a suit upon the bond for damages. As it was evident the obligor would ultimately be able to make a title, they might well rely upon his assurances that he would do so, as soon as practicable : and when it became practicable, undoubtedly it was their right to demand and receive a conveyance. If there seems to have been great delay on the part of the plaintiffs, it was a delay which was unavoidable on their part, without a relinquishment of their rights under the contract. Laches cannot be imputed to them. They brought heir suit for specific performance, as soon as the defendant was in a condition to perform, or as the bringing of the suit could have been of any avail to them.
The Court therefore did not err in adjudging that the suit was not barred by limitation, or the lapse of time ; and the judgment is affirmed.
Judgment affirmed.