The first cause of demurrer, that Elbert Herring is a necessary party to the bill, is not good. He was not a party to the contract of sale which the bill seeks to enforce, though it may be necessary, in order to make a title to the defendant, that he should unite with the complainants in the deed. If, under the decree that shall be made, the complainants are not able to get Herring to execute the deed as they now offer to do, the suit will entirely fail and the defendant be exonerated. For this reason, I think the necessity of making him a party is obviated.
The second cause of demurrer also fails. Whether the will has or has not been proved as a will of real estate is immaterial at present. The bill shows that the will was made so as to pass the title to real estate ; that the estate was devised to the executors in trust to sell; and that they became vested with the title and seised and possessed of the estate. This is enough in pleading. On a reference under a decree to ascertain whether they *583can give a good title, it will be seen whether they can or cannot.
, The matter thirdly demurred to, is mere matter of inducement, very properly stated and in nowise objectionable.
The ten per cent, of the purchase money and, indeed, the whole of the purchase money might be the subject of an action at law to recover it; but chancery having concurrent jurisdiction by way of enforcing a specific performance of the whole contract and the ten per cent, being an indivisible part of that contract, though a divisible part of the purchase money, this court has jurisdiction to enforce payment of it in connection with the whole subject.
I am of opinion that every cause of demurrer fails. It is unnecessary to consider the point, whether the answer does not overrule the demurrer, for it must be overruled independent of that objection, with costs ; but the defendant is to have twenty days to answer.