Opinion,
Mr. Justice Sterrett:Neither of the contracts in question contains any reference to the other, and thus upon their face they appear to be separate and independent: but, upon the evidence before him, the learned master has rightly found they are, in effect, interdependent parts of a single contract for an exchange of the properties therein described.
According to the terms of their agreement, the parties respectively took possession of the property each was to receive, having first receipted to each other for $250 on account. Nothing more remained to be done until October 1, 1884, when appellant was to have conveyed her farm to appellee “ in fee simple free from all incumbrance, dower and right of dower,” and appellee was to have conveyed his farm to Edward R. Fellows, the son-in-law and appointee of appellant, subject to a mortgage of $2,700. That sum is the exact difference between the valuations of the respective properties, agreed upon by the parties as a basis of exchange, the one being valued at $1,800 and the other at $4,500. If the conveyances had been executed and delivered, as contemplated by the parties, the contract would have been fully executed, but that was not done. At the time and place appointed for exchange of conveyances, etc., appellant was present and ready to perform her part of the contract, but appellee failed to appear. The result was delay; but, inasmuch as time was not of the essence of the contract, he might have offered to perform his part of the agreement within a reasonable time thereafter, and thus put himself in a position to have demanded a deed from appellant. Subsequently, on November 15, 1884, he did tender a conveyance, but instead of being subject to a mortgage of $2,700, as required by the agreement, it was subject to an incumbrance of $2,754, and accrued interest, amounting in all to about $2,836. In the mean time, October 23,1884, Fellows, to whom the land was to have been conveyed, brought suit to recover damages for appellee’s failure to convey.
*621The deed, tendered by appellee as above stated, was refused by both Fellows and appellant. Neither of them was bound to accept it, for the obvious reason that it was subject to a greater incumbrance than either of them had agreed to assume. Without further offer to comply with his part of the contract, appellee afterwards filed his bill against appellant for specific performance of her contract. While the case was pending before the master, a scire facias on the mortgage was issued and on the judgment obtained for $3,053.27, debt, past due interest, etc., the land was sold and conveyed by the sheriff to plaintiff in the writ. To these foreclosure proceedings, neither appellant nor her son-in-law, Fellows, was made a party.
The question is whether upon the facts, of which the foregoing is an outline, the decree of the court below can be sustained. We are of opinion that it cannot, for the reason that appellee never performed or offered to perform his part of the contract, according to its true intent and meaning, and for the further reason that in the mean time and without appellant’s fault, the circumstances of the parties have so changed that it is no longer in the power of appellee to convey the land as he agreed to do, and hence it would be inequitable to require appellant to convey her land and accept in return therefor such a deed as the decree contemplates.
Specific performance of contracts for 'sale or exchange and conveyance of land is never a matter of right, but always of grace; but whether of right or of grace, it would certainly be most unjust and inequitable to decree specific performance of a contract for exchange of lands against the party, who at the appointed time was ready and willing to perform, and in favor of the other party, who was not only in default but has never offered to perform, according to the terms of his contract, and whose laches have rendered performance on his part impossible. Such a party should be remitted to his rights at law, if he has any.
It will not do to say the parties intended the conveyance of the farm in question to Fellows should be subject to the mortgage as it then stood upon the record, $2,754 and accrued interest, or that it is not unreasonable to require the party in possession to pay the accrued and accruing interest, etc. An all-sufficient answer to such suggestions is that the parties did *622not so agree. It is the business of courts, both of law and equity, to enforce, not to make contracts. If any provision of the agreement under consideration is clear and explicit it is that the farm was to be conveyed to Fellows on October 1st, subject to a mortgage incumbrance of 12,700, and no more. It is not alleged there was any mistake as to the amount. As we have seen, that was the difference in the values of the respective properties agreed upon as the basis of the exchange. The mode of adjusting that difference was by conveying, on the 1st of October ensuing the date of agreement, subject to that exact sum. Whether the excess over the sum named be much or little the court has no right to impose the payment thereof on a party who never agreed to assume it. The principles of equity applicable to the facts of this case are elementary, and hence citations of authority are unnecessary.
Decree reversed and bill dismissed, with costs to be paid by the appellee.