This is a bill in equity to obtain the specific performance of an agreement. The defendant insists that the bill ought not to be sustained, because the plaintiff himself is in fault in not performing his part of the agreement; that, by the terms of the agreement-, each party was required to execute and deliver to the other a good and sufficient deed to make effectual the partition of certain land anda barn; and that while it is true that the plaintiff executed and tendered to him a deed of the land, he never executed, and never offered to execute, or deliver to him a deed of that portion of the barn which was set off to him. To this the plaintiff says that the barn was personal property; that the defendant had no interest in the land on which it stood; and that no deed or other instrument of conveyance was necessary to vest the title in the defendant. To tins the defendant replies that he does not *434admit that he has no interest in the land; that, by the terms of the agreement which the plaintiff asks to have enforced, he (the defendant) is entitled to a deed of that portion of the barn which was set off to him by the referees; and that, if it be true, as the plaintiff claims, that the barn is on land wholly owned by him, that that fact alone proves the necessity of the defendant’s having such a deed as the agreement calls for.
We are forced to the conclusion that the defendant is right. The agreement which the plaintiff claims to have enforced certainly entitles the defendant to such a deed as he claims. And, as the plaintiff did not execute, and did not offer to execute, such a deed, within the time limited in the agreement, nor, so far as appears, at any time since, but insists that such a deed is unnecessary, we think he is in no condition to insist that the defendant shall be compelled to execute his part of the agreement.
The case shows that at the hearing in the court below, the plaintiff signed a paper, not a deed, affirming the doings of the referees, and presented it to the court. This was an irregular proceeding, and can have no influence in the decision of the cause.
The decree in the court below was in favor of the plaintiff. We think the decree is clearly wrong, and that it must be reversed.
Decree in the court below reversed.
Bill dismissed with costs.
Peters, C. J., Danforth, Virgin, Libbey and Foster, JJ., concurred.