The opinion of the Court was delivered by
Mellen C. J.Two objections have been urged against the sufficiency of the defence on which the tenants rely, and we are of opinion that they are both well founded. The contract which the tenants have considered as a defeasance to their deed of the same date, certainly is not such an instrument; as by the terms of it, the Messrs. Holland were not bound to re-convey the land to the tenants ; they had the election to reconvey it, or to pay to the tenants any balance which might bo due to them on a settlement between the parties. The fee of the land was absolute in the Hollands, if they elected so to consid*200er it; and by the report it appears that they did so elect, because they conveyed the fee, which was afterwards conveyed to the demandant’s ancestor. Prior to such conveyance by the Hollands, no bill in equity could have been maintained against them by Pratt, because they were not bound to convey the land, but might discharge themselves from their contract by payment in money of the balance that should be due ; and for the same reason, such contract created no right which could have been attached and sold for payment of Pratt’s debts. By the report, it appears, that the agreement was not recorded till more than ten years after its date, and after the premises were conveyed to the ancestor, Samuel Rawson; according to the 3d'd:section of ch. 36, of the revised statutes, the bond, while unrecorded, could not operate as a defeasance against any person, but the original party to such bond or contract, or his heirs. So that if the contract had been a perfect defeasance as against the Hollands, still, it could not have operated as such against Rawson. The decision of the presiding Judge was perfectly correct. Whatever remedy Pratt has, must be by an action at common law, on the contract, to recover such sum of money as may be due to him.
The default must stand, and judgment he entered thereon.