350 HIGH COURT OF CHANCERY.

There is not, in my opinion, that clear and convincing proof
of a contract for the sale of land and acts of part performance,
which must be produced to take a case out of the statute of
frauds. There was some agreement, no doubt, between these
parties, but what it was, what were its terms and conditions,
does not appear, and it is impossible, I think, to say that the
act of part performance relied upon, could have been with no
other view or design than to perform the agreement set up in
the bill; which, as the cases prove, is indispensably necessary
to entitle the party to a specific performance.

He must show acts, unequivocally referring to and resulting
from that agreement, such as the party would not have done
unless on account of that very agreement. In this respect, I
think, the present case is deficient, and therefore a specific per-
formance cannot be decreed.

But, there is another, and, in my judgment, insuperable ob-
jection to granting the complainant relief upon this bill. The
intestate never was in a condition to complete the title, and the
cases are abundant to show, that unless a party is ready and
competent to perform the contract on his part, he cannot call
for a specific performance from the other side. Benedict vs.
Lynch, 1 Johns. Ch. Rep., 370, and the cases referred to by
Chancellor Kent in that case are conclusive upon the subject.

The title to the land in this case was, and is, in George H.
Stewart, who sold to Beard, and to whom more is due than the
land, according to the proof, would now sell for. Stewart says in
his answer, that he never would have sanctioned such a loose
contract as is set up by this bill, and it is alleged by him, and
it is in proof, that he is now prosecuting an independent bill in
this court, against the widow and heirs of Beard for the sale of
the land to pay his claim, and he insists that he should not be
embarrassed or delayed in the prosecution of his suit, by the
proceedings in this.

The remedy in these cases of specific performance must be
mutual, and if one of the parties is not bound, or is not able to
perform his part of the contract, he cannot call upon the court
to compel a performance by the opposite party. Benedict vs.