This action was brought to compel the specific execution of a contract relative to the purchase and conveyance of real estate. The contract is set forth in the complaint, and admitted in the answer, and the defendant, as purchaser, refused to perform it, on the ground that a good title could not be given by the plaintiffs. The cause was referred to Murray Hoffman, Jun., to take the testimony and report the same, with his opinion thereon. The referee, in January, 1857, made a report, stating all the material facts of the case, and his conclusions of law therefrom. His report and opinion are in these words:—

“ To the Judges of the Superior Court:

“ The subscriber, to whom it was referred by an order of this Court, made on the seventh of May, 1856, to take testimony as to the validity of the plaintiffs’ title to the lands and premises described in the complaint, which are the subject of this action, and to report such testimony with his opinion thereon, reports that he has been attended by the attorneys of the plaintiffs and defendant, and has taken the testimony hereto annexed.

“ The following opinion thereon is submitted.

This action was commenced on the fourth of April last, to enforce the specific performance of a contract.

“ The complaint states that on the 26th of January, 1856, the plaintiffs entered into a contract therein set forth with the defendant, to sell to her the house and lot known as number 41 West Eighteenth street, in the city of Mew York, and on the first of April ensuing tendered to her a warranty deed, properly executed and acknowledged as required by the contract,, and demanded of her payment of the purchase money in accordance with its terms.

“ The complaint avers that the plaintiffs have good title to the premises, free and clear from all incumbrances, and have complied with every stipulation of the said contract, but that the defendant refuses to comply with or perform the same.

“ The answer acknowledges the contract as stated in the complaint, and that the defendant declined to receive a warranty deed in due form tendered to her, on the ground of defective title, which defect is therein stated as follows:

“ That the title to the premises was in one James R. Smith at the time of his death, but that said Smith left a will and codicil thereto, making such dispositions of his estate that Ms executors had not the power to convey Ms real estate in fee, and make good the title thereto. That they, or some of them, made a deed to one Robert Dyson, of the premises in question, on or about the 26th of December, 1829, (through whom the plaintiffs claim;) that such conveyance was not a valid conveyance, but was made to avoid the restrictions in the codicil to the said will, and not bond fide or legal in any respect.

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