not paid, the commissioner named in the decree was directed to sell the land, make a conveyance, deliver possession, &c.; leaving it to the commissioner to ascertain whether the money was paid or tendered, and to decide accordingly. Whether the tender was or was not a good one, or whether the payment was or was not made, was left to the adjudication of the commissioner, when it was the province of the court to decide such matters. The proper chancery practice on this subject is given with great clearness and precision in the case of Downing v. Palmateer, 1 Mon. 66.
The counsel for the appellee contended that the agreement on the part of Goodloe, to pay the purchase-money to Pintard, was founded upon a valuable consideration, and necessarilycommon honesty, which exist among men, and which courts of equity will always enforce. I beg the indulgence of the court to allude to a few matters of minor importance.
1. It is insisted in the answer, that the dwelling-house of Pintard was upon section six, and that he was not entitled to a pre-emption under the act of 1834. To this I reply, that whether he was or was not entitled to a pre-emption under that act, is not material to the support of his right to relief. But in fact, he was so entitled. The dwelling-house which was there when Pintard purchased of Tunstall, in the spring of 1833, was probably situated on or near the meridian line which divides section six and section one; but the