Tapley, J.
—Upon all matters of fact found by the presiding Judge, his finding is conclusive. It is contended in this case, that the plaintiff is not entitled to recover upon the facts found, for there was no evidence or finding that a demand was made of the defendant for a deed previous to the commencement of the action, and that it was error in law to give judgment for the plaintiff without such proof.
We think this position cannot be sustained, and that there was uo error in this particular.
The defendant, by his deed duly executed on the same day the bond was executed, conveyed all his interest in the property described in the bond. From the moment of the execution and delivery of his deed he had no estate or interest in it whatever, that could be reached by any process of this Court. His deed could give no right or interest in it, for he had none to convey. The clauses inserted in the
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deed, that it was made " subject to the incumbrance alone by my liability this day created by my bond to give a deed of the same to Florence McCarthy,” &c., reserves uo interest in the grantor. While it might operate as an incumbrance upon the estate in favor of McCarthy and her assigns, it nevertheless devested Mansfield of all interest therein. He could not convey, and hence no decree would be made requiring an impossibility. The authorities are clear upon this point. Patten having taken, subject to the conditions and provisions of the bond, could have been compelled to convey to McCarthy upon a performance of the conditions of the bond, he having full knowledge of those conditions and having taken the conveyance subject to them. He could however have been compelled to thus convey only at the instance of the party entitled to a conveyance. To such persons it was his duty to convey upon demand after a fulfilment of the conditions of the bond. A demand was made upon him, as the case finds, and he refused to convey. The plaintiffs then had two remedies; one at law for damages, and one in equity to compel the specific performance of the conditions of the bond. The action at law must be against the defendant alone; the bill in equity at least against Patten. He sought the former remedy, and the defendant having placed it out of his power to convey, no demand was necessary to be made upon him, and the exceptions must be overruled. What the remedy of the defendant may be, after he has satisfied the judgment, is not now necessary to be determined and probably will be dependent upon the proof of some additional facts.
Motion and Exceptions overruled.
Appleton, C. J., Walton, Dickerson, Barrows and Daneorth, JJ., concurred.