The opinion of the court was delivered, by

The first objection to the plaintiff’s recovery is, that the remedy should have been in the Orphans’ Court, for specific performance of the contract between John Eckels, Sr., and Taylor and Morris, on the ground that John Eckels, Jr., stands in their shoes, and is liable to perform their contract to the heirs of his father. This is a misconception of the facts. That contract has been specifically performed. Taylor and the executors of Morris, then deceased, on receiving the price stipulated in the contract, executed the deed demanded by it to the heirs of their vendee, who being dead was represented by them. The contract was therefore fully performed, and even if the title conveyed under it vested in John Eckels, Jr., as trustee for the others, he was a living person competent to convey and liable to be proceeded against by them only as a trustee; and not the representative of a deceased vendee who could be brought into the Orphans’ Court to be compelled to perform specifically an unexecuted contract. The deed is not spread out before us, but the extracts given import that it created not a technical trust in John Eckels, Jr., but a use which the statute executed; and the legal title, therefore, passed into all the heirs of the vendee.

It is on this legal title in Mrs. Stewart,'as one of the heirs of old John Eckels, the ejectment is founded, she not having executed a release under the settlement made in the former ejectment; the use is subject to equity, however, to enforce the payment of the money agreed to be paid to her for its relinquishment. It was in the power of the court to compel her on the trial to file her release, and this can yet be done before payment of the sum found by the jury. This sum, as between the parties, is an encumbrance on *463the title, the settlement of the former action having been made on the condition of executing a deed, and the note for the money deposited in the hands of a third person until this was done. If the plaintiff stood upon a mere equity the case might be different; but here the legal title being vested in Mrs. Stewart by the deed of Taylor and Morris’s executors, the defendant’s title depends on a mere equity. He must throw himself upon the effect of the family arrangement made in 1836, in order to raise an estoppel against her title. To meet this the plaintiff set up Mrs. Stewart’s minority at the time of that arrangement, and the fact that John Eckels had in his hands, as administrator of his father, sufficient assets to pay off the purchase-money under the contract. The former action of ejectment having been brought before any presumption of payment of the balance in his hands as administrator could arise, and before the Statute of Limitations had run, and the parties in view of the facts as they then appeared, having decided to compromise their litigation, it is unnecessary to decide what would have been the effect of the family arrangement.

They settled upon terms agreed upon, and carried out by marking the settlement on the record, a.nd depositing the note for the sum agreed upon as due to Mrs. Stewart in the hands of a third person until the deed should be made. The verdict in the present action having given the land to the defendant, he has nothing to complain of excepting that it compels him to pay the sum of money agreed to be paid on the settlement. The court left it to the jury to say, whether this settlement remained in full force and unrescinded, and they have so found. By the verdict he has the land, and why should he not pay the money he stipulated to pay to compromise litigation and obtain a full title ? It is his own contract, and is evidenced by his note, and on its payment he' will receive his deed. This he is entitled to receive, and can yet have by an order made for his protection. The whole case was therefore narrowed down to the right of Mrs. Stewart to use her legal title to enforce payment of the money due to her. This she can do, but upon such terms as will prevent injustice to the defendant. In this view of the ease the defendant was not injured by the answers of the court to his points, and the judgment must be affirmed but with this further order, that the defendant have leave on return of the record into the court below and notice thereof, and within three months after said return and notice, to bring into court the sum of $195,'with interest from February 25th 1864, and that the plaintiff have leave to take the same out of court only upon filing in the court a sufficient deed of release of the title of Mrs. Stewart to the land in controversy to John Eckels, Jr., his heirs and assigns, in fee simple.

Judgment affirmed accordingly.