Opinion by

The report of the master shows the facts important to a decision of this case very clearly. The house and lot in controversy appear to have been the separate property.of Mrs. Powel prior to the 4th day of October, 1892. On that day she and her husband made a verbal agreement for the sale of the property to their next door neighbor, Cockroft Thomas. For some reason which does not appear, her husband went on the following day to B. F. Teller & Bro. and authorized thém to make sale of the house and lot for eighteen thousand dollars. They found a purchaser, notified Mrs. Powel, and she signed a memorandum, approving the sale negotiated by them, which is dated on the 6th of October, 1892. On the 18th of the same month she and her husband completed the sale to Thomas by executing and delivering their deed, acknowledged in due form, to his daughter Susannah M. Heraty, for whose use he desired the property, and to whom he seems to have presented it as a gift. Maguire having refused to surrender or sell his interest under the bargain made by him with B. F. Teller & Bro., now seeks a decree for the specific execution by Mrs. Powel and her husband of the agreement made on their behalf by Teller & Bro., and that Susannah M. Heraty be adjudged a trustee of the title for his use and directed to convey, it to him. The *387Powels, with the same indifference to the rights of others manifested in the negotiations preliminary to the sale, have taken no defence, and a decree pro confesso has been entered against them ; but Mrs. Heraty denies that she is a trustee of the title for the plaintiff, and insists that she is entitled to hold it for herself.

Upon 'this question two facts are conclusive: First. The contract made by her father and in execution of which the deed was delivered to Mrs. Heraty, was'the first in point of time. It was made on the 4th day of October. The contract, so far as it was authorized or ratified by her, between Teller and the plaintiff, was on the 6th. It is a maxim of equity that first in time is first in right. Thomas had a right, as between himself and his vendors, .to insist on his agreement as good against any and all persons acquiring rights subsequently to his own ; and Maguire was such a person. It is true that Mrs. Powel] was not legally bound by her contract with Thomas, but on the other hand she'was under no obligation, legal or moral, to^ -repudiate it. If she chose to recognize and -execute it she had a right to do so, and a court of equity will not deny to her this right. Second. Thomas, the purchaser, who paid the price of this property to Mrs. Powel and under whose direction the deed was made to Mrs. Heraty,- is the party to the contract which we are asked to hold void and he is a necessary party to this' bill for that reason. Mrs. Heraty did not buy from. Mrs. Powel. She is a donee of her father wrho did buy, and who paid the price ; and if that contract of purchase and the deed made in pursuance of it are to be adjudged fraudulent and void as against the plaintiff, then beyond all question the actual purchaser should be a party.

. The plaintiff insists that he shows the first and only written contract of sale and that this contract is complete in every essential particular. This is true; but it was the privilege of Mrs. Powel to reply the fact that she had made an earlier contract of sale which, though not in writing, she felt bound to perform, and that she had accordingly done so. The rule in equity’ is that any circumstance that shows that a decree of specific execution,' even of a written agreement of sale, would 'be unfair or inequitable is sufficient to defeat the application: Br. Eq. Jurisprudence, 220. Mrs. Powel did not choose to state *388the facts, but they have been made to appear by the other defendants, and have been distinctly found by the master. Even if the evidence upon this subject was conflicting the finding by the master would, when approved by the court below, be regarded as settling the question: Kutz’s Appeal, 100 Pa. 75. But the evidence is not conflicting. There is no denial of the fact that the verbal contract with Thomas was made on the 4th of October. Whether Mrs. Powel was necessarily bound by her contract with the plaintiff it is not important now to inquire. She seems to have assumed her liability, and suffered a decree to be entered pro confesso against her.

As she has made the specific execution of the agreement impossible by the performance of a prior contract of sale and the acknowledgment and delivering of a deed in pursuance thereof, her liability upon the second contract is for damages only, and these can be adjusted by the court belo'w under the judgment pro confesso.

As to Susannah M. Heraty and M. P. Heraty, her husband, the decree is affirmed and the bill dismissed. Appellant to pay the<■ costs of this appeal. The record is remitted for proceedings under the decree pro confesso to ascertain the damages to which the plaintiff is entitled.