Error to the Common Pleas of Lancaster County to review a judgment on a verdict for the defendant in an action of assnmpsit.

At the trial before PatteksoN, J., the following facts appeared :

On October 8, 1884, Joseph C. Walker and Henry Wise entered into articles of agreement under seal, for the sale and purchase of a farm in Sadsbnry township, containing 122 acres and 31 perches. Walker covenanted and agreed that he would, 'on or before April 1, 1885, at the cost of Wise, “his heirs and assigns, by such deeds of conveyance as he or they, or his or their counsel, learned in the law, shall advise, well and sufficiently grant, convey, and assure unto the said Henry Wise, his heirs and assigns, in fee simple, clear of all encumbrances,” tbe said farm. In consideration whereof, Wise, for himself, his heirs, executors, and administrators, covenanted and agreed that he would pay or cause to be paid to Walker, his heirs, executors, administrators, or assigns, “the sum of $100 per acre-; total $12,-219.37%, to be paid as follows: $1,219.37% to be paid on the signing and sealing the articles of agreement, tire balance of $11,000 to be paid on or before the 1st day of April, 1885, on the delivery of a properly prepared and signed deed of conveyance,” — Walker to allow $5,000 or $6,000 to remain secured on the property at 5 per cent per annum. The $1,219.37% was paid to said Walker as agreed upon.

The property was then in the possession of one Glick, as tenant of Walker.

On March 12, 1885, Wise died, leaving a widow and five children, all minors except Thomas G. Wise, who with his mother became administrators, of the decedent, by letters granted March 25, 1885.

On April 1, 1885, Walker, accompanied by Benjamin Ell-maker, called on Mrs. Wise at her house, and in the- presence of some of the children and a friend tendered her a deed, drawn under his directions, in which “the heirs” (without naming them) of Henry Wise were made grantees. Mrs. Wise expressed some doubts as to the validity of the deed drawn up in the form it was, at the same time expressing her entire willingness to complete the purchase, including the payment of the purchase money as provided in the articles of agreement She asked, however, sufficient time to go to Lancaster, a distance of about 20 miles, to consult counsel, and return by the 7:30 train that evening. This permission was refused by Walker, and he at the same time said that they could appoint guardians over the minor children, that the deed so tendered should be then accepted or never, and that on refusal he would take possession of the property that' evening, which he did.

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