By the Court,
It is not always sufficient to aver performance in the words of the contract. The intent of" the contract must be shewn to have been performed; and where the words do not clearly and unequivocally express in terms that which in judgment of law they import, their legal import constitutes the contract, and that must be averred to
Thus in this case, the covenant on the part of the plaintiff Was to sell to Garret B. Van Ness, the testator of the defendant, a certain lot of land. The legal effect of this covenant was that he Was to convey the land to Mr. Van Ness by a deed; but the contract not having specified the species of conveyance to be given, he should have averred, not that he sold, but that he conveyed, and have set forth in general terms, the nature of the conveyance, whether it Was a quitclaim deed or a deed with Warranty, &c. in order that the court might judge whether it was such a deed as, by the legal intent of the contract, he was bound to give.
The plaintiff in his declaration has- treated this as a condition precedent on his part, and on that ground has attempted to shew performance; and such, I think, is the true construction of the contract.
2. The breach on the part of the defendants is insufficiently assigned. By the contract, Mr. Van Ness Was to pay for the lot $875 in manner following, to wit: to the new loan officers of the county of Dutchess the amount of the principal and interest of a certain mortgage given by said Plageman on the said land ; and also one other mortgage given as aforesaid to one Benjamin Everitt, of Fishkill, and the balance to be paid to the said Hageman as soon as the said Garret B, Van Ness should have the possession of the said land. Neither the date nor the amount of either of the mortgages is stated, nor when payable ; nor does Mr. Van Ness undertake to pay on or before any particular day. The balance over and above the mortgages Was to be paid .When he took possession of the land. The breach assigned is that Mr. Van Ness in his life time did not pay, nor have the defendants since his death paid the said mortgages, or the balance over and above the mortgages.
3. By the English statute of 3 W. & M. ch. 14, which gives to creditors a remedy against the heirs and devisees of their debtor, it is expressly provided that the action shall be brought against the heirs and devisees jointly. (Bac. Ab. tit. Heirs and Ancestors, 3d vol. page 461. 2 Saund. 7, noted, where this statute will be found. 1 Chitty’s Plead. 40. 2 id. 161, precedent 15, note b, and cases there cited.)
In our statute for the relief of creditors against heirs and devisees, (1 R. L. 316,) the word jointly is omitted, and the action is given generally against the heirs and devisees, &c. Whether this would alter the construction of the statute, and áuthorize an action to be brought against the heirs or devisees alone, where there were both, it is not necessary to decide ; though I should incline to the opinion that it would not, and that they ought all to be joined. But the omission, where it does not appear on the face of the declaration, can be taken advantage of only by plea in abatement. Where there are no devisees, all the heirs must be sued jointly; but if they are not all joined, it must be pleaded in abatement. (Com. Dig. tit. Abatement, F. 9. 2 Viner’s Abr. 67. 1 Chitty’s Plead. 29, 40. (Whitaker v. Young, 2 Cowen, 569.) In this case, it does not appear that there are any heirs of Garret B, Van Ness ; as it regards this exception, therefore, the demurrer is not well taken.
But on the other grounds which have been stated, the defendants are entitled to judgment upon the demurrer, with leave, however, to the plaintiff to amend on payment of costs.