(after stating the case.) If the agreement of sale be deemed to be in full force notwithstanding the devise of the land (its subject matter), inasmuch as the executor could not make title under section 1492 of The Code, unless the bond has “ been proved and registered,” as well as the purchase money paid in full, the offer to make the deed and its tender were ineffectual to pass the estate in pursuance of the testator’s covenant, and were consequently inoperative. The devise itself, not repudiated by the defendant, put the legal title in him to one moiety of the land as effectually as the testator’s deed made in his life time could have done, and the other moiety in the defendant, the co-devisee Hartwell W. Now, assuming that the former accepts the joint devise by claiming his portion of the estate under it, it i's an assent to the disposition made of the other part, and this is inconsistent with the alleged continuance in force of the. *148covenant entered into in the testator’s life time. The said defendant could not hold the land as a donation by the devise, and after thus disabling the executor to convey the estate, maintain an action for specific performance or for damages for a breach of the bond. This result follows from the act of the testator in making his devise, and its acceptance by the defendant, which, in legal effect, is the substiiution of a new and superceding adjustment of the contract relations of the parties, and rests upon a well recognized principle, which forbids the assertion of a claim to a right secured in an instrument to a party, and a resistance to the other provisions affecting his interests prejudicially. He is put to his election. Isler v. Isler, 88 N. C., 581. The defendant, Tazwell L., sets up no claim to a conveyance of the estate under the contract, and as from our view he cannot, neither can the plaintiff maintain an action on the covenant in opposition to a subsequent adjustment proposed in the will, assented to by the devisee, and thus doing away the original agreement.
It would be manifestly unjust to permit the devisee, Taz-well L., to retain the share of the land given him as a bounty and at the same time hold the testator’s estate responsible, and so it would be in the executor to enforce payment of the purchase money against the vendee. The rights of the parties under their agreement and reciprocal deed, the testator must have intended in the donation, for such it is, to exonerate the party to whom it is made from further liability to him, and this intent is consummated by the assent of the latter.
The elaborate and forcible argument for the plaintiff, presents his claim in a different aspect, and seems to ignore the fact that this is not a testamentary alienation attempted to be made to a stranger, wdiich would be inoperative, but is a matter between the same persons, the consummation of *149which is brought about by the concurring acts of themselves. In this respect the citations from our own reports, and from other authorities, do not affect the aspect of the case upon which our ruling rests.
It must be decláred that there is no error and the judgment is affirmed.
Affirmed.