—I concur in Judge Larremore’s opinion. The defendant’s inability to perform was known at the time of the commencement of the suit; the fact that he apprised the plaintiffs of his wife’s refusal to unite in the conveyance is set forth in the complaint; and this being the case, the plaintiffs’ only ¡remedy was an action at law for the recovery of damages for the breach of the agreement. He does not claim, in his com¡plaint, to recover damages; and if he had, the court could not, in this action, have afforded him that relief, as no equitable jurisdiction whatever existed when the suit was brought. See the authorities and reasons stated in the case of Beck v. Allison, decided at the present term. There is, as Judge Larremore has remarked, no imputation of fraud or collusion on the part of the defendant; but, on the contrary, the judge has found that he endeavored, in good faith, to induce his wife to unite with him in the conveyance. The evidence shows that not only the defendant, but the plaintiffs also, at the defendant’s request, tried to persuade her to sign the deed, but she would not; and that the defendant was willing throughout, if the plaintiffs would accept it, to sign the deed himself. Under these circumstances, the defendant’s demand, in his answer, for judgment dismissing the complaint, should have been granted.
Judgment reversed.