pronounced the following opinion of this Court.
*173The Court is of opinion that, upon the true construe-i ion of the agreement, as stated in the declaration, the testator of the appeellees was bound to make or tender a conveyance for the land sold, whereupon he would be entitled to receive and recover the 600L stipulated as the first payment therefor; and that, upon his also ascertaming the quantity of the land by a survey, he would have been farther entitled to the bonds stipulated to be given or assigned for tbe balance: but, it being found by the verdict, as modified by the consent of parties, that no such deed was ever made or tendered, the Court is of opinion that that balance is not due or recoverable, under the agreement, although a survey ascertaining the same has been made; and that the judgment of the Superior Court, upon the first Count, for the appellant, is correct.
The Court is further of opinion, that the said agreement provides, that the said conveyance should be made by the, said testator himself, and not by his'heirs; a restriction the appellant may have good reasons to insist on, and had, therefore, a i*ight to insert in the contract; and that this construction is not varied by the circumstance that the penal part of the agreement extends to such heirs:'—and the second Count in the declaration having admitted that no such conveyance was made or tendered, by the said testator, the Court is of opinion that the same makes no case whereon the appellees are entitled to recover, although it is stated therein, that Conveyances were made and tendered, for the premises, by the widow and heirs of the said testator.
The judgment of the Superior Court, on this Count, is therefore to be reversed, and entered for the appellant.