#### DAVID A. THOMPSON et al. v. APPALACHIAN POWER COMPANY.

(Filed 28 February, 1912.)

Contracts — Specific Performance — Equity,.

Specific performance of a contract to convey lands in this case 'will not be decreed, owing to a doubtful title, the failure to make the cestuis que trust parties, and other circumstances appearing therein.

Appeal from Long, J., at Pall Term, 1911, of Pole.

*588Civil action in the form of a controversy without action. The plaintiff seeks to compel the defendant to specifically perform a contract for the purchase of a large tract of land, and to pay to the plaintiff the sum of $40,000 purchase money.

The judge below rendered a judgment in favor of the plaintiff, decreeing specific performance of the contract and requiring the payment of the purchase money. The grounds upon which specific performance is resisted by the defendant is that the plaintiffs are unable to make a good and indefeasible title to the property. The defendants appealed.

Smith & Shipman, James Ii. Merrimon for plaintiff.

Bomar & Osborne and Tillett & Guthrie for defendant.

Per Curiam.

In view of the doubtful character of the title offered by the plaintiff, and further considering the fact that the cestuis que trust have not been made parties to- this action, the Court is of the opinion that under the circumstances of this case specific performance should not be decreed.

The action is dismissed without prejudice.

Dismissed.