Opinion by
Beatty, C. J., Brosnan, J.,concurring.
The appellant, in the month of March, 1865, filed his Complaint, alleging substantially the following facts:
That one Lyman Jones, on the first of May, 1859, located a certain mining claim two hundred feet square, which covers a part of the claim noAV occupied and Avorked by the defendant. That on the thirtieth of September, 1861, Jones deeded this claim to one Osborne by deed absolute on its face, but with an understanding or agreement that Osborne was to prosecute an action at laAV, at his own expense, for the recovery of the ground from which Jones had been ousted, and upon recovery he Avas to reconvey seventy feet to Jones. That on the same day, Osborne conveyed to his counsel — Smith, Clayton & Lindsey — fifty feet of the claim as a counsel fee for prose*43cuting the suit. That in March following (1862) suit was commenced against the Yellow Jacket Company (not then incorporated) for the mining claim located by Jones. In the spring of 1863, whilst this suit was still pending, Jones made a contract with the plaintiff whereby he bound himself to deed ten feet of this claim to plaintiff in the event Osborne or Osborne’s administrator (for Osborne himself was dead) recovered from the Yellow Jacket Company, and conveyed to him, Jones, the seventy feet about which there was an agreement between Jones and Osborne, when the deed was made to Osborne. Shortly after this agreement was made, the suit of Osborne (or his administrator) against the Yellow Jacket Company came on for trial, and the plaintiff took a voluntary non-suit.
In the course of that year two new suits were brought against the Yellow Jacket Company: one by Smith, Clayton & Lindsey for their fifty feet, the other by Osborne’s administrator for the remaining one hundred and fifty feet. In March, 1864, both these suits were disposed of in the following manner:
On the seventh day of March, Smith, Clayton & Lindsey filed a written consent that judgment for costs might go against them.
• They subsequently conveyed their interest in the mining claim to the Yellow Jacket Company. The administrator of Osborne on the ninth of March filed a like written consent that judgment might go against him for costs. He had however, previous to that day, conveyed all his interest in the mining claim to the Yellow Jacket Company.
The complaint, in speaking of this written consent on the part of Osborne’s administrator that the judgment should be entered against him for costs, says: “ That the consideration moving plaintiff in said cause for the filing of such written consent as aforesaid, and the entry of such judgment, was the-purchase by defendant of the said Lyman Jones of his right, title and interest to said mining claim, and the purchase by said defendant from the said W. R. Hickock, administrator of the estate of J. A. Osborne, deceased, as aforesaid, of his right, title and interest in and to said claim.”
Subsequent to the dismissal of the suit, Jones conveyed all right, title and interest in the claim to the Yellow Jacket Company. The *44bill further charges, that when the Yellow Jacket Company took their conveyance from Osborne’s administrator and from Jones, it had notice of the agreement about the ten feet between this plaintiff and Jones, and also of the Jones and Osborne agreement as to the seventy feet.
The bill concludes with a prayer that the defendant be compelled to convey ten feet undivided interest in the mining ground described ; for costs, etc. The defendant first demurred, and on the demurrer being overruled, then answered. The case went to trial, and a decree was rendered in accordance with the prayer of the complaint.
The case should have been disposed of on demurrer, and it is therefore unnecessary to notice the answer or proof in the case. Respondents claim that they were entitled to a decree against the appellants because they took a conveyance from Jones whilst there was an existing contract, of which respondents had notice, between Jones and respondents for the conveyance of this ten feet of ground. No principle is better settled than that if A contract to sell land to B, but before consummating the sale conveys the same land to C, who has a knowledge of the preexisting contract, C is in equity bound to fulfill that contract.
But that principle is wholly inapplicable to this case, for at least two good reasons : First, Jones never was bound to convey anything to plaintiff; and second, he never sold or conveyed anything to defendant.
Jones’ contract to convey to plaintiff depended on two conditions : First, that Osborne should recover from the Yellow Jacket Company; second, that having recovered from that company, he should convey seventy feet to Jones. Now, neither Osborne nor his administrator ever did recover from the Yellow Jacket Company, nor did they ever convey seventy feet to Jones.
Now, if Jones himself never was bound to convey, how is it possible that those holding under him (admitting there is any title held by conveyance from him) could be bound to convey by reason of the derivation of title from him ?
But it may be answered that although the conditions never arose on which Jones was to convey, yet he himself became a party to *45the compromise of the suit against the Yellow Jacket, and thereby prevented the happening of the contingency on which his liability to convey depended. This is all true, and we may admit that Jones thereby became liable to plaintiff in the proper form of action for whatever injury was done to plaintiff by that compromise. But in such case, the plaintiff’s remedy, if any, was a pecuniary compensation for his loss. It was not by a conveyance from Jones, for Jones, after the compromise, had nothing to convey. That remedy must have been against Jones alone.
If one covenant to sell or convey land, and refuses to carry out that covenant, the covenantee has two remedies against him. One, an action at law for damages; the other, a bill for specific performance. Whilst the latter remedy may be enforced against either the original covenantor or his vendee with notice, the former can only be enforced against the original party. If, then, Jones violated his covenant by assenting to the compromise, he became personally liable; but that was a liability that could only affect him or his personal representatives in case of his death.
Again, on the other point. The suit between Osborne’s administrator and the Yellow Jacket Company was compromised in February or March, 1864. The complaint avers that the administrator made a deed of all Osborne’s interest in Februáry, and by consent judgment was rendered for defendant on the 9th of March, 1864. Now if Jones ever had any interest in the mining claim, the whole of it (except what was deeded to the lawyers, and that is not here brought in question) passed to the Yellow Jacket Com•pany by the deed of February, 1864, and the judgment of March 9th, 1864.
There was not a shadow of title or claim of any kind left to Jones. Consequently the deed which he subsequently executed was no more than a mere piece of waste paper. It conveyed nothing because he had nothing to convey.
The conveyance to Osborne by Jones was absolute on its face. It was made for the express purpose of allowing Osborne to prosecute the suit. If he had a right to prosecute the suit he had a right to compromise it. At least the Yellow Jacket had a right, in order to protect their possession, to compromise the suit with *46him, and if the title passed by such compromise it would be availaable to them. If Osborne, in making such compromise, violated his contract with- Jones, he might be personally liable, but this could not affect the Yellow Jacket Company.
If Osborne had the right to compromise the case without Jones, certainly the fact that Jones assented to the compromise could not invalidate it.
The complaint alleges in substance that he was a party to the compromise which was consummated by the entry of judgment on the ninth of March, 1864, but his deed was not made for months afterwards. The facts stated in the complaint show no grounds of action against the Yellow Jacket Company. The judgment of the Court below must be reversed, and the bill dismissed. It is so ordered.