406 DEAKINS' CASE.

to concede on Hole's granting the indulgence therein asked for;
but what was done in consequence of the proposition, thus made,
does not appear.

Long after which, in the year 1815, Edward Thomas sued out a
scire facias on his judgment against this plaintiff John Hoye, as
administrator de bonis non of the late William Deakins. To which
Hoye appeared and put in five pleas, in one of which he relied on
the agreement of the 26th of March, 1805; and alleged, that the
land therein mentioned became the right and estate of Thomas,
and was received by him in full satisfaction of his judgment. But
afterwards Hoye withdrew his pleas; and on the 24th of April,
1817, confessed judgment, as appears by the record, to bind assets
in hand, and future assets as they accrued.

After which Hoye filed this bill, asking for a specific performance
of the agreement of the 26th of March, 1805; but Thomas having
died before he had answered; Hoye, by a bill of revivor, made his
executors parties. The original bill alleges, that on the 5th of
January, 1816, Hoye executed a deed for lands according to the
agreement, which deed he tendered to Edward Thomas' attorney,
on the 25th of April, 1817, who refused to accept it. But the
answer of the defendants in no manner admits this deed; and there
is no proof whatever of it; or of its conformity to the agreement.

Upon the state of facts, I feel perfectly satisfied, that the com-
plainant cannot have the relief he asks, even supposing the agree-
ment to have been not at all affected by the proceedings at law;
and to be such a one as a court of equity would specifically enforce;
because the plaintiff Hoye has, in fact, altogether failed to perform
his part of it, according to its clear and positive provisions. But,
if he had complied with it, he has not placed himself here in a con-
dition to obtain the relief he seeks. He has not brought all the
proper parties before the court. The executors of Edward Thomas
might assign the judgment; but his heirs are the persons, who
alone are to be benefitted or affected by any conveyance of the
specified lands, that had been made, or which might now be
ordered by the court.

Whereupon it is Decreed, that the said bill of complaint of John
Hoye, be and the same is hereby dismissed with costs to be taxed
by the register. And it is further Decreed, that the order of the
2d of July, 1821, together with so much of the order of the 24th of
November, 1824, as prohibits the trustee from making sale of so
much of the real estate of the late William Deakins, as was autho-