¶1The opinion of the Court was delivered by
¶2The bill seeks to enforce a specific performance of a contract, made and executed by the parties on the 25th day of February, 1853. It alleges full performance on the part of the complainant, and a neglect and refusal to perform on the part of the defendant. The answer admits the making and executing the agreement or indenture, under seal, as recited in the complainant’s bill; but alleges that the complainant never paid the sums of money mentioned in said indenture to be by him paid, to the defendant, in accordance with the terms of said indenture, or any of them, and has never performed the terms of said indenture, by him to be performed. And the defendant further says, that the complainant is not entitled to the relief by him sought in his said bill; but, if entitled to any thing, he is only entitled to recover at law the sum of two hundred dollars in said indenture mentioned, as liquidated -damages, for any -breach of its terms, by the defendant.
¶3The complainant in his replication to the answer of the said defendant, says that he will aver and prove his said bill to be true, certain and sufficient in law to be answered unto; *41and that the said answer of the defendant is uncertain, untrue and insufficient to be replied unto by the repliant.
¶4We are satisfied that the material facts, alleged in the bill, and denied in the answer, are true, and are proved to be true, by the evidence exhibited by the complainant in the case.
¶5Where a contract, respecting real property, is in its nature and circumstances unobjectionable, it is as much a matter of course for a Court of Equity to decree a specific performance, as it is for a Court of Law to give damages; and, generally, a Court of Equity will decree a specific performance, when the contract is in writing, is certain, and fair in all its parts, and is for an adequate consideration, and is capable of being performed. The form of the instrument, by which the contract appears, is wholly unimportant. Thus, if the contract appears only in the condition of a bond, secured by a penalty, the Court will act upon it as an agreement, and will not suffer the party to escape from a specific performance by offering to pay the penalty. 2 Story’s Eq., § 751.
¶6Time is not generally deemed in Equity to be the essence of the contract, unless the parties have so treated it, or it necessarily follows from the nature and circumstances of the contract. 2 Story’s Eq., § 776. The parties have not so treated it in this case, as it clearly appears from the proof. Complainant has fully performed and offered to perform every thing on his part to be performed, and within the time, as extended by the defendant’s consent. He is, therefore, entitled to a decree for specific performance as prayed for, upon bringing into Court and depositing with the clerk thereof the sum of eight hundred and sixty-five dollars, for the use of said Sturdivant or his legal representatives, and also depositing with said clerk such a receipt in full to said Sturdivant or his legal representatives as is provided for in and by said agreement.