The opinion of the court was delivered by
Garrison, J.In 1865 Adam P. Ware, the complainant, bought of Ezra Evans a lot of ground for $158. Ware paid $100 on account, -entered into possession by Evans’s consent, and received from him a written memorandum in these words:
“ Received 12th mo., 13th, 1865, of Adam P. Ware, one hundred dollars, on . account of a lot of land sold him; the deed to be hereafter made to him, and when delivered he is to give his note for fifty-eight dollars additional.
(Signed,) “Ezra Evans.”
This was in 1865. In 1880, nearly fifteen years later, Evans ■died, the deed not having been delivered nor the note demanded.* On the 4th day of March, 1882, Ware transmitted to the defendants, who are the heirs-at-law of Evans, his promissory note for $58. They not only refused to accept the note and deliver the deed, but, on the contrary, began an action of ejectment against Ware for the land. Ware thereupon filed this bill to enjoin the prosecution of the suit at law, as well as for the specific per*224formance of the contract into which in his lifetime Evans had-entered.
There is in the case thus presented a single question, viz.: Had: the defendants a right to demand from Ware, before they would deliver to him his deed, anything more than his note for $58 ?' They certainly could not require of him more than Evans could have done, if alive. Evans, at any period prior to his death, would have been compelled to make a deed upon Ware’s tender to him of his note for $58. Evans could not have required interest on that sum. Interest was an incident not of the contract of sale but of the note. The note had no existence in fact because it had hot been obtained, and none in equity because it ■ had not been demanded. Evans in his lifetime had it in his power to fix a period when interest should begin to run, either-by obtaining or demanding the note from Ware. He died, not. having done either. His heirs now seek, in his name, to do what • he himself, if living, could not have done. This cannot be. The representative stream cannot rise higher than its ancestral source.
The defendants should have delivered to Ware his deed upon, his tender of a note of the amount mentioned in their ancestor’s-agreement to convey.
The decree of the court of chancery must be reversed, and a. decree made in accordance with these views.
Decree unanimously reversed.