delivered the opinion of the Court:
This bill was for the specific performance of a contract in writing, by which William Mathison agreed, on the payment of the purchase money, to convey to David Wilson, by general warranty deed, the tract of land which is the subject of this litigation. The original agreement is in evidence, and of course there can be no disagreement as to its terms. The misunderstanding is as to what subsequently took place between the parties. While there is a decided conflict in the evidence, the clear preponderance is, that, at about the time the purchase money became due under the original agreement, complainant offered to pay it, and insisted upon having a deed according to the contract, but defendant declined to receive the money and make the deed, alleging, as a reason, the property was incumbered by a mortgage, and that he could not give him such a deed as he was obligated to do. It is true, complainant made no formal tender of the purchase money, but it is shown he had the money with him, and offered it to defendant if he would make him a deed for the property, and, as the offer was declined, that was all he was bound to do to show himself ready and willing to perform his contract.
On account of the incumbrance on the property, which defendant alleged prevented him from making complainant a deed at that time, it was agreed, according to complainant’s version of the transaction, that defendant should make a new bond for a deed, to be executed at a future day, and, for that purpose, the old bond was surrendered, as was also the note given for the purchase money, with the distinct understanding new ones, of like tenor, only differing as to dates, should be executed. It is proven by a disinterested witness that defendant had such papers prepared, but he never executed the bond, nor was any new note given for the purchase money. After-wards, defendant declined altogether to make any new papers evidencing the verbal agreement between them for a new contract. There was no rescission of the old contract, and, as there was no new agreement executed by which the time of payment was postponed, it follows, the old agreement remained in force, unaffected by the verbal contract, and the court rightfully decreed a specific performance of the original contract, as to William Mathison.
But we do not understand how the decree can be maintained as to Jane Mathison, wife of the principal defendant. She never signed the original agreement for the conveyance of the land, nor is there any evidence of any contract on her part to convey whatever interest she may have in the premises that is binding upon her or valid in law. As the decree of the court directed the master in chancery to convey her interest in the land, in case she failed to do it by a day fixed, it was erroneous in that respect.
The decree will be reversed, and the cause remanded, with the privilege to complainant, if he chooses to do so, to take a decree for a deed to the lands, on the same terms as in the former decree against William Mathison, but not against his wife, who is not shown to have been a party to any agreement for the conveyance of the land.
Decree reversed.