¶1The question of jurisdiction of the court below has been settled at this term, and needs no further discussion here.
¶2The next question is, whether the action shotild have been brought in the name of the administrator, instead of the heir. At the time of the decease of the intestate he had no cause of action against the defendant below for the demand now sued for, nor of any other kind; for, at that time, Buck had committed no breach of his bond, and had in no way rendered himself liable upon it. The only interest which the intestate had at that time in the subject matter, was in the land; • and the only claim which he had against Buck was for the land. As such, it could only descend to his heir, and could not pass to his administrator as a chose in action, or as personal estate. Buck was guilty of no breach of his bond until he put it out of his power to perform it, by conveying the land to Bryant. As, Upon the death of the ancestor, the interest in the land, and the bond, which was his equitable title to it, descended to and became vested in the heir, when Buck did commit a breach of the bond, he violated his obligation to the heir, and not to the administrator, and hence a cause of action thereupon arose to the heir. Suppose the heir, upon a tender of the balance of the the purchase money due upon the bond, which she did, in fact, make, had chosen to file a bill for a specific performance, believing that she could bring home notice to Bryant; could the administrator have anticipated her, and prevented her from filing such a bill, by bringing an action on the bond for its breach ? And yet he could have done so if this right of action was in the administrator. The simple fact that the heir had an undoubted right to file a bill for the specific performance of the bond presents the whole argument, conclusively showing that all interest in it, and all claim under it, was vested in the heir. She had a choice of remedies, and could bring this action upon the bond for its specific performance, or file the bill, and the administrator could not interfere with the one nor the other. The defendant himself had a right to claim exemption from being harrassed by two claimants against him, upon the same instrument. Abney v. Brownlee, 2 Bibb. R. 170.
¶3The only remaining question is, whether the proof was sufficient to sustain the action, for no exception was taken to the admissibility of evidence, or any ruling of the court. The only exception taken is to the finding of the court upon the evidence.
¶4The plaintiff gave, in evidence, the bond, proved the payment of the $175 by the ancestor, and that, before the expiration of the five years, when the other payment would become due, he conveyed the jiremises to Bryant, and thus disabled himself from conveying the land according to the provisions of the bond.
¶5E"ow, if this was not sufficient to maintain the action for the amount of the money paid, and interest, I confess I should have been unable to advise what farther to prove. Although a .tender was also proved of the amount of the last payment, that was entirely unnecessary, unless the plaintiff had claimed to recover the value of the land, at the time it should have been conveyed. It is possible, had that been claimed as the measure of damages, the tender might have been necessary.
¶6The judgment of the county court must be affirmed.
¶7Judgment affimed.