The opinion of the Court was delivered by
Mr. Justice Gary.
The appeal in this case is from an order of his Honor, Judge Benet, sustaining a demurrer and [90]*90dismissing the complaint, on grounds which, together with the complaint, exceptions, and additional grounds upon which the respondent asks that the order be sustained, will be set out in the report of the case. The exceptions of the appellant and the additional grounds upon which the respondent asks this Court to sustain said order, raise practically but three questions, to wit: 1st. Was there error on the part of the Circuit Judge in refusing to dismiss the complaint on the grounds that the Court, in the exercise of its equitable jurisdiction, did not have cognizance of this action, and that the complaint did not state facts sufficient to constitute a cause of action? 2d. Was there error on the part of the Circuit Judge in ordering that the complaint be dismissed, on the ground that the executor was not joined as a party to the action? And 3d. Was there error on the part of the Circuit Judge in ordering the complaint to be dismissed, on the ground that the heir at law of Eusebia M. Greenland was not made a party to the action?
1 The questions arising herein are controlled by decisions which have been made by the courts of last resort in this State. The case of McKeegan v. O'Neill, 22 S. C., 454, shows that such an action as is alleged in the complaint is equitable in its nature, and that the Court in the exercise of its equitable powers will enforce specific performance thereof. The case of Gary v. James, 4 DeS., 185, decides that when the Court adjudges specific performance. • of a contract like the one alleged in the complaint, the effect of such judgment is to take precedence of the devises and legacies mentioned in the will. This principle is sustained by Beach on Contracts, section 917, in which the author says: “An agreement to make a disposition of property by will, may be enforced by requiring those to whom the property descended or was devised to convey in accordance with the terms of the agreement.” In the case of Colby v. Colby, 81 Hun., 221, the Court says: “There was a legal binding contract alleged in the complaint, made upon a good and sufficient consideration, which the plain[91]*91tiff fully and faithfully performed on her part; the deceased failed to perform on his part; he failed to vest her with the title to the property in question, and in consequence of such failure on the part of the deceased, the title to the house and lot descended to the defendants, who are his heirs at law; the relief to which the plaintiff is entitled is a conveyance from these heirs of the title to the premises in fulfillment of the contract of their ancestor. While an agreement to make a certain disposition of property by a last will is one which, strictly speaking, is not capable of a specific execution, yet it has been held to be within the jurisdiction of a court of equity to do what is equivalent to a specific performance of such an agreement, by requiring those upon whom the legal title has descended to convey the property in accordance with its terms. (3 Pars, on Cont., 405.) And the Court will not allow this post mortem remedy to be defeated by any devise inconsistent with this agreement.” The reason of this rule is because, under the allegations of the complaint, the plaintiff to whom, by the terms of the contract, the testator agreed to devise and bequeath one-half of his estate, became the equitable owner of such portion, and as equity considers that as done which should have been done, the Court will enforce specific per-' formance of the contract by adjudging the legal title to be in the equitable owner thereof. A judgment enforcing specific performance of the contract would have relation back to the time when the contract was entered into, and would have priority of rank over the will, which could not have the effect of passing the legal title until the testator’s death. The Court enforces specific performance of an agreement - by which a party contracts to dispose of his property by will, upon the same principles as when he contracts to convey the title by deed. The right of the parties under such a contract are set forth in I. Pom. Fq. Jur., sections 105 and 368. The Circuit Judge was not in error in refusing to sustain the demurrer on the ground that the Court was without jurisdiction in the excise of its equitable powers. [92]*92The additional grounds upon which the respondent gave notice that it would ask this Court to sustain the order of the Circuit Court cannot be sustained.
2 We next proceed to a consideration of the second question. The allegations' of the complaint are to the effect that the executor has delivered to the respondent all the property of the testator, and that the respondent is in the exclusive possession thereof. These allegations show that the executor no longer has any interest in the said estate, and, therefore, not a necessary party. This principle is sustained by the case of Vernon v. Valk, 2d Hill, 257, in which the Court uses this language: “If this were an action at law then against the heir and devisee, it would be no objection that the executrix was not joined, or that she had assets,' or that no remedy had been pursued against her; but the heir or devisee had an equity, if there were assets sufficient to satisfy the debt in the hand of the executor, to be reimbursed out of those assets.” When, therefore, it was necessary for the creditor to come into equity, (and suits against the heir or devisee seem to have been more common in equity than in law), it was requisite that the executor should be made a party — not on the principle contended for in this case, that the executor is the only legal representative of the testator, and the only proper person to defend an action which shall affect his estate, but on the familiar equity rule of preventing circuity of action, by making all persons interested parties, so that complete justice may be done at once. Now, the court of equity in all cases delights to do justice, and not by halves, as first to decree the heir to perform this covenant, and then to put the heir upon another bill against the executor to reimburse himself out of the personal assets, which, for aught that appears to the contrary, may be more sufficient to answer the covenant, and where the executor and heir are both brought before the Court, complete justice may be done by decreeing the executor to perform this covenant, so far as the personal assets will extend, the [93]*93rest to be made good by the heir out of the real assets. Knight v. Knight, 3 P. Wms., 333. The question in that case was whether the executor could be made a party. If it was shown by the bill, however, that there were no assets in the hands of the executor, or that he had been called to account and the remedy against him was exhausted, the reason would cease, and it would be unnecessary to make him a party.
If there were an executor or administrator in this State having assets, it would be necessary to make him a party, not on the ground that he is the only legal representative to defend the estate, but on the equity principle mentioned. The bill, however, shows that there is no executor or administrator and no personal assets in the State; of course, no such party could be made. It shows that all the personal assets went into the hands of the executrix, Peggy Africana Ehrich, and her executors are made parties.
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The opinion of the Court was delivered by
Mr. Justice Gary.
The appeal in this case is from an order of his Honor, Judge Benet, sustaining a demurrer and [90]*90dismissing the complaint, on grounds which, together with the complaint, exceptions, and additional grounds upon which the respondent asks that the order be sustained, will be set out in the report of the case. The exceptions of the appellant and the additional grounds upon which the respondent asks this Court to sustain said order, raise practically but three questions, to wit: 1st. Was there error on the part of the Circuit Judge in refusing to dismiss the complaint on the grounds that the Court, in the exercise of its equitable jurisdiction, did not have cognizance of this action, and that the complaint did not state facts sufficient to constitute a cause of action? 2d. Was there error on the part of the Circuit Judge in ordering that the complaint be dismissed, on the ground that the executor was not joined as a party to the action? And 3d. Was there error on the part of the Circuit Judge in ordering the complaint to be dismissed, on the ground that the heir at law of Eusebia M. Greenland was not made a party to the action?
1 The questions arising herein are controlled by decisions which have been made by the courts of last resort in this State. The case of McKeegan v. O'Neill, 22 S. C., 454, shows that such an action as is alleged in the complaint is equitable in its nature, and that the Court in the exercise of its equitable powers will enforce specific performance thereof. The case of Gary v. James, 4 DeS., 185, decides that when the Court adjudges specific performance. • of a contract like the one alleged in the complaint, the effect of such judgment is to take precedence of the devises and legacies mentioned in the will. This principle is sustained by Beach on Contracts, section 917, in which the author says: “An agreement to make a disposition of property by will, may be enforced by requiring those to whom the property descended or was devised to convey in accordance with the terms of the agreement.” In the case of Colby v. Colby, 81 Hun., 221, the Court says: “There was a legal binding contract alleged in the complaint, made upon a good and sufficient consideration, which the plain[91]*91tiff fully and faithfully performed on her part; the deceased failed to perform on his part; he failed to vest her with the title to the property in question, and in consequence of such failure on the part of the deceased, the title to the house and lot descended to the defendants, who are his heirs at law; the relief to which the plaintiff is entitled is a conveyance from these heirs of the title to the premises in fulfillment of the contract of their ancestor. While an agreement to make a certain disposition of property by a last will is one which, strictly speaking, is not capable of a specific execution, yet it has been held to be within the jurisdiction of a court of equity to do what is equivalent to a specific performance of such an agreement, by requiring those upon whom the legal title has descended to convey the property in accordance with its terms. (3 Pars, on Cont., 405.) And the Court will not allow this post mortem remedy to be defeated by any devise inconsistent with this agreement.” The reason of this rule is because, under the allegations of the complaint, the plaintiff to whom, by the terms of the contract, the testator agreed to devise and bequeath one-half of his estate, became the equitable owner of such portion, and as equity considers that as done which should have been done, the Court will enforce specific per-' formance of the contract by adjudging the legal title to be in the equitable owner thereof. A judgment enforcing specific performance of the contract would have relation back to the time when the contract was entered into, and would have priority of rank over the will, which could not have the effect of passing the legal title until the testator’s death. The Court enforces specific performance of an agreement - by which a party contracts to dispose of his property by will, upon the same principles as when he contracts to convey the title by deed. The right of the parties under such a contract are set forth in I. Pom. Fq. Jur., sections 105 and 368. The Circuit Judge was not in error in refusing to sustain the demurrer on the ground that the Court was without jurisdiction in the excise of its equitable powers. [92]*92The additional grounds upon which the respondent gave notice that it would ask this Court to sustain the order of the Circuit Court cannot be sustained.
2 We next proceed to a consideration of the second question. The allegations' of the complaint are to the effect that the executor has delivered to the respondent all the property of the testator, and that the respondent is in the exclusive possession thereof. These allegations show that the executor no longer has any interest in the said estate, and, therefore, not a necessary party. This principle is sustained by the case of Vernon v. Valk, 2d Hill, 257, in which the Court uses this language: “If this were an action at law then against the heir and devisee, it would be no objection that the executrix was not joined, or that she had assets,' or that no remedy had been pursued against her; but the heir or devisee had an equity, if there were assets sufficient to satisfy the debt in the hand of the executor, to be reimbursed out of those assets.” When, therefore, it was necessary for the creditor to come into equity, (and suits against the heir or devisee seem to have been more common in equity than in law), it was requisite that the executor should be made a party — not on the principle contended for in this case, that the executor is the only legal representative of the testator, and the only proper person to defend an action which shall affect his estate, but on the familiar equity rule of preventing circuity of action, by making all persons interested parties, so that complete justice may be done at once. Now, the court of equity in all cases delights to do justice, and not by halves, as first to decree the heir to perform this covenant, and then to put the heir upon another bill against the executor to reimburse himself out of the personal assets, which, for aught that appears to the contrary, may be more sufficient to answer the covenant, and where the executor and heir are both brought before the Court, complete justice may be done by decreeing the executor to perform this covenant, so far as the personal assets will extend, the [93]*93rest to be made good by the heir out of the real assets. Knight v. Knight, 3 P. Wms., 333. The question in that case was whether the executor could be made a party. If it was shown by the bill, however, that there were no assets in the hands of the executor, or that he had been called to account and the remedy against him was exhausted, the reason would cease, and it would be unnecessary to make him a party.
If there were an executor or administrator in this State having assets, it would be necessary to make him a party, not on the ground that he is the only legal representative to defend the estate, but on the equity principle mentioned. The bill, however, shows that there is no executor or administrator and no personal assets in the State; of course, no such party could be made. It shows that all the personal assets went into the hands of the executrix, Peggy Africana Ehrich, and her executors are made parties. If there has never been any proceeding whatever against the executrix or her representatives, here are all the parties that ,could be made. There is no analogy to our decided cases that have been relied on, as in Trescott v. Trescott, 1 McC., Ch., 417; that before a legacy or distributive share can be pursued by creditors in the hands of the legatee or distributee, the executor must be sued to insolvency. Such creditors never had any direct right of action against the legatee or distributee, and their entire equity as against them is founded on the executor’s insolvency.” The exceptions raising the second question are sustained.
The next question for consideration is as to the necessity of making the heir at law a party to the action.
The respondent relies upon section 2080, Rev. Stat., to show this necessity. That section is as follows: “Where any persons have, by bonds or other specialties, bound themselves and their heirs, and have afterwards died seized in fee simple of and in lands, tenements and hereditaments, or, having power or authority to dispose of or charge the same by their wills and testaments, have, to the defrauding [94]*94of their creditors by their last wills or testaments, devised the same, or disposed thereof in such a manner that such creditors have lost their said debts, every such creditor shall and may have and maintain his action upon his said bonds and specialties against the heirs and heirs at law of such obligor and obligors and such devisee and devisees jointly.” This is not an action brought by the plaintiff as a creditor, claiming the protection of said section, but to have the legal title adjudged to be in her to that portion of the testator’s estate of which the allegations of the complaint show she is now the equitable owner. The foregoing'section, therefore, has no application. At common law, the heir was not liable for the debts of the ancestor, except by bonds and specialties, wherein there was a stipulation binding the heirs, and then only to the extent of lands descended, but the devisee was not liable even to the extent of lands devised. (Smith v. Grantt, 15 S. C., 136.)
By the Statute of 3 & 4 W. & M., devisees were declared to be null and void as against creditors by bonds and other specialties wherein the debtor bound himself and his heirs. By this statute the creditor was also able to maintain his action upon such indebtedness against the heirs at law and devisees jointly, so as to prevent a multiplicity of suits. This statute was made of force in this State. 2 Stat., 533. In 1732, the Statute of 5 Geo. II., c. 7, was passed, by which lands were made assets for the payment of debts. By this statute, it is provided that lands shall be liable to, and chargeable with, all just debts, of what nature or kind soever, and shall be assets for the satisfaction thereof, as real estate is liable for bonds or other specialties. The Statute of 3 & 4 W. & M. makes a devisee liable “in the same manner as the heir at law,” &c. Section 2053 of the Rev. Stat. is as follows: “The judges of probate of the several counties in this State shall have power, if the personal estate of any intestate, testator or testatrix in the hands of the administrators or executors, or if the assets set apart by last will and testament be insufficient to pay the debts of [95]*95the deceased, to pay over to the administrators or executors of such estate the whole, or so much of the proceeds of the sale of the real estate of the deceased sold by them, the said judges, as will pay the outstanding debts of the deceased; and the administrators or executors receiving the same shall be chargeable therewith, as with other assets which have come into their possession in the regular course of administration.” Even if the complaint herein could be construed as setting forth a cause of action by the plaintiff as a creditor, whether by bond, specialty or otherwise, the provisions of this section show, that it is not necessary to join both the heir at law and the devisee. The word “or” is used, which indicates that only the person was to be made a party who claimed the lands by descent or devise. It is true, this section provides that proceedings thereunder may be instituted in the Probate Court, but as the Court of Common Pleas would have concurrent jurisdiction in such cases, the provisions of said section are also applicable to the Court of Common' Pleas. Jordan v. Moses, 10 S. C., 431. The exceptions raising the third question are also sustained.
It is the judgment of this Court, that the order of the Circuit Court be reversed.