The covenant, the specific performance of which,, as á means of enforcing a lien upon the real estate described in the pleadings is demanded, embraces two distinct interests, one wholly personal to the contracting parties, the other the trust estate committed to the joint administration of the feme plaintiff and the defendant. The payment of the deferred purchase money for her share in the land sold, is to be secured by the conveyance of the estate of the debtor, thus charged, by a mort*647gage deed, while the defendant, left in charge of the trust estate of the deceased intestate, J. L. Lineberger, is forthwith to render an account of his administration, execute to his associate, the feme plaintiff, his note, bearing interest at the rate of eight per cent., payable in two years, and to be secured in like manner by mortgage of the same land. Preliminary to the ascertainment of the sum for which the defendant would be liable, it became necessary to have the partnership settled, whereof the intestate was a member, in order that his portion, as well as what was due under the guardianship committed to the defendant, might be entered as credits upon the administration account proper. The protracted and complicated controversies which had to be, and have been, settled, during the progress of the cause, have grown out of the administrations, and have necessarily delayed the execution of so much of the contract, as related to the ascertaining of the value of the assets of the intestate for distribution to the parties entitled. During this period, the duties common to both, acting as trustees under their joint appointment, have rested upon one, and the funds have not had the joint care and supervision intended. As understood by the plaintiffs, the obligation of the defendant covers the two preliminary, as well as the final accounts to be stated.

Not only does this arrangement comprehend the retirement of the administratrix from the management, with a view to her being absolved from responsibility in the premises, but the mixing up of personal and trust matters in one and the same contract, may possibly lead to antagonism, a result not sanctioned in a Court of equity, and we may repeat what is said in N. C. R. R. Co. v. Wilson, 81 N. C., 223, “The law frowns upon any act on the part of a fiduciary, which places interest in antagonism to duty, or tends to that result.”

It is in this aspect of the case, we used the language repeated in the opinion now under review. “We are not prepared to uphold the contract in this feature, as one entitled to a specific performance, if its validity were now open to question.” Such *648equitable relief is not of postive right, to be demanded, but it is afforded under general rules of equitable action, it is true, in the exercise of a sound discretion, by the Court.

But aside from this, without needless repetition, we adhere to the reasoning pursued in the opinion, and now called in question, upon which the Court refused to decree a specific execution of the contract upon the first hearing of the appeal. Notwithstanding the able and exhaustive argument, and copious learning brought to bear upon the point, our convictions remain unchanged of the effect of the absence of averments necessary in sustaining the present claim, and which are not, because of their essential nature, waived by pleading over, as now contended.

We therefore adhere to our former ruling, and affirm the judgment.

Affirmed.