The demurrer of Sarah Litchfield was not well taken. She and her husband were both necessary parties to the ease made by the bill; the husband, as the party to the contract, and the wife by wrongfully taking a conveyance to herself of the land which by the contract was to be conveyed to complainants.
The demurrer of Liba Litchfield was also properly overruled. He assigns six distinct causes of demurrer, which, without repeating them, may be answered in their order.
1. The bill alleges the land to be owned by complainants in fee simple. This is a sufficient averment of title, especially as the contract contained no special stipulations in reference to any particular kind of title, or the evidence by which it was to be shown.
2. The facts and circumstances set forth in the bill are equivalent in this case to a tender of complainants* deed to defendant, Liba Litchfield, and a direct request to defendants to execute a deed to complainants. It was not necessary for complainants to prepare the latter and present it to defendants for execution.
3. We are aware of no rule or principle of pleading requiring a more specific allegation of the mode of performance, or of the manner in which the clearing or fencing was done.
*374. It was unnecessary to allege that Sarah (the wife) was requested to convey before suit brought. Having wrongfully taken the conveyance to herself with full notice of complainant’s rights, and without any consideration, she stood only in her husband’s rights, and must be bound by the request made upon him. Her taking the title under-the circumstances stated in the bill was a fraud upon complainants.
5. It was not necessary to allege in the bill that the wife was willing to convey her right of dower. The title never having vested in the husband, there can be no question of dower in the case. Had the title been con-, veyed to the husband instead of the wife, it might have been necessary to determine whether the prior equities of' complainant under the contract should or should not pre-* vail over her contingent right of dower.
6. The sixth and last ground assigned relates to mere matter of form, and would be cured by the general prayer had it been in itself a defect of substance.
This disposes of all the causes of demurrer assigned,, One objection, however, was taken on the argument which, if well founded, would defeat all relief by way of specific performance, and as the objection is raised on matter apparent on the face of the bill, it may be appropriately considered under the demurrer. It is insisted by the coun-. sel for defendants that, by the terms of the contract set out in the bill, the parties have agreed upon the stipulated damages which either party is to pay in case of a breach; that these damages are agreed upon as a substitute for performance; and therefore that either party had the option to perform or to pay the fifty dollars agreed upon.
It is sufficient answer to this to say that, though the parties have called this sum stipulated damages, yet as it applies to several different stipulations of very different degrees of importance, and , by the terms of the stipulation would be payable equally qn the failure to perform the *38least as of that to perform the most important, or the whole of them together, it is, in leg-al effect, but a penalty, and not stipulated damages; since it is evident the parties themselves .could not have treated it as a mere compensa'tion for actual damages: — Jaquith v. Hudson, 5 Mich. 123. As a penalty, it is no objection to specific performance: Dart on Vend. & Pur. 496 and note 1. We must therefore -consider the case on pleadings and proofs.
The bill, as we have seen, contains a sufficient allegation of the title of complainants: if the defendants intended to deny it, or to insist upon incumbrances as an objection to performance, they should, by their answer, have put the title in issue, or alleged encumbrances (and the burden of proof would be upon them: — Dwight v. Cutler, 3 Mich. 566). But instead of this, they have rested their refusal or failure to convey upon another and distinct ground, the non-performance by complainants of their part of the contract, not stating the want of title, nor encumbrances, as even one of the reasons for the refusal to convey.
It is true, that after having rested their refusal expressly upon the ground of non-performance by complainants, the -defendants in another part of the answer “further say,” “that said Liba Litchfield, for the purpose of ascertaining complainants’ title to the land,” “ caused an examination to be made by some person in the office of the register of deeds for said county, of the records of deeds, and that, from said examination, it appeared that complainants had •no title in or to said premises, nor could said Liba ascertain in whom the title to the land vested.” Whatever-effect this loose allegation of a hearsay examination might have had if .set forth as one of the reasons for refusing a conveyance, yet standing alone as it does, and the defendants not appearing to have sufficient confidence in the examination to enable them to express even a belief as to its •correctness, or of the want of title in complainants, we do *39not think it a sufficient denial of title to put the question in issue; and it is entirely silent as to encumbrances.
But had .the defendants properly alleged encumbrances and a want of title, no defect of title, nor any encumbrance, is shown by the evidence. The tax title, the prior existence of which was shown only by complainants’ evidence, was also shown to have been conveyed to complainants before the time when by the contract the deeds were to be exchanged, and before the conveyance executed by complainants. A release of mortgage is returned with the evidence, dated after the commencement of the suit, but its prior existence is not otherwise shown, nor does the evidence show that the mortgage ever affected or related to the land complainants had agreed to exchange.
The question of performance is therefore the main question in this case; and though the direct evidence of the manner of performance is somewhat conflicting, yeh when, taken in connection with the fact that Litchfield made no objection at the time to the manner in which the clearing and fencing was done, though present and aware of all the facts, his admissions and conduct, and his long acquiescence— never objecting to the mode of performance till called on to convey — the evidence we think satisfactorily shows a substantial performance by the complainants.
The defendants, in their 'answer, insist that a survey was to be made prior to an exchange of conveyances, and it was urged upon the argument that such survey was a necessary pre-requisite to a proper conveyance, and that the description contained in the deed executed and ready to be delivered by complainants was bad for uncertainty.
The contract calls for no survey, and we see no necessity for it before the execution of the deed., All that was necessary was such a description in the deed of complainants that the land described might be identified by a survey* This could easily be done here by first ascertaining the quantity in the lot Litchfield had agreed to convey, and *40then surveying off a tract of equal quantity from the east part of the south - east fractional quarter of section thirty-two (defendant’s land) in such manner that . the tract so surveyed off should be bounded on the west by a north and south line; and such is the legal effect of the description in the deed executed by complainants. The desci’iption is made good by the reference it contains to the other tract.
The decree of the Court below must be affirmed, with costs.
The other Justices concurred.