delivered the opinion of the court.
The petitioner prays that the administratrix be decreed to transfer to him one undivided half of a certain tract of land, described in the petition, within a reasonable time to be fixed by the court, and that she be decreed, on her failing to do so, *310to pay the sum of two thousand dollars, with interest and costs*
There was a plea to the jurisdiction of the court, and the ■ defendant prayed that if the petitioners claim be. sustained, it might be restrained to the recovery of the money.
The court was of opinion that the petitioner’s claim was not one for money, and sustained the plea to its jurisdiction, and the petitioner appealed.
His counsel has urged, that the Court of Probates erred, because the deceased having entered into a bond with a penalty to make title, and the whole transaction being spread on the record, and there being a prayer for general relief, the court was competent to give judgment for the money, and he relied on 6 Toullier, 804. Civil Code, 2116 — 8. 6 Martin, N. S. 623. Code of Practice, 924, no. 13, 983, 41-2— because the prayer was in the alternative, i. e. a transfer or the payment of the penalty. 7 Martin, N. S. 655.
The counsel of the appellee has contended that a prayer for general relief does not authorise a relief different from or contrary to that asked; nor does it give jurisdiction in cases in which the law gives it not. It does not authorise damages when the defendant is not in mora; that the obligation is but a simple one — Civil Code, 2015 — but one with a penal clause. Ib. 2113-4.
It appears to us the Court of Probates did not err. An acti°n derives its character from the prayer. Here a decree, that a tract of land be conveyed is asked. The court is prayed to fix a particular day on or within which the conveyance must be executed. This the court cannot do in any case< the present, it is asked that a person who cannot convey should do so. After all this, comes a prayer that if this person, who cannot convey, do not execute a conveyance which the court cannot decree, within a period which it cannot fix, then this person is to be condemned for refusing to comply with an illegal dun to pay a sum of money.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs ...in both courts.