Burk's Appeal

The opinion of the court was delivered, March 23d 1874, by Mercur, J. This bill was filed to enforce performance of an agreement in writing made by the appellant, to sell and convey to the appellee, certain lands in fee simple, clear of all encumbrances. It appears there was an encumbrance of a small sum on the land, in favor of the widow and heirs of a former owner. This was unknown to the appellee at the time the contract was executed. The encumbrance still remains. The general rule is well settled, that the purchaser, if he chooses, is entitled to have the contract specifically performed so far as the vendor can perform it; and to have an abatement out of the purchase-money, or compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate: Story’s Eq., sect. 779. This encumbrance comes within the general rule. So far then as the decree of the court below* directed the amount of that encumbrance to be deducted from the contract price, we discover no error. The important question in the case arises under other facts. It appears that the appellant, at the time of the execution of the contract, had a wife, which fact was then known to the appellee; that [146] she is still living, and declines to join in the execution of a deed for a conveyance of the land. The master reported, and the court below decreed, that the appellant execute a deed in fee simple of the land, but that one-third of the purchase-money be withheld until the death of the wife, or until her right of dower should be released. Thus the question is presented whether, in case of the refusal of a wife to join in a deed with her husband conveying his land, in pursuance of his contract, the purchaser may have specific performance, so far as the husband is concerned, and be indemnified against the contingent claim, of dower of his wife, by retaining a portion of the purchase-money. When the contract was executed by the appellant, it was suggested to him that his wife should also sign it. He replied in substance that it was unnecessary, as she was a woman who never meddled with his business. That she allowed him to do as he pleased in such matters, and would do whatever he should say. Afterwards, upon the same day, the appellant informed his wife what he had done. She thereupon declared she would not sign the deed, and has continued to persist in that refus'al. The master has found that no evidence was given to satisfy hint hat the wife withheld her consent through collusion with her husi .nd. The wife then has not said or done anything whic\ compels her to unite in the fulfilment of her husband’s contract. \ 5he has not executed and duly acknowledged any written instrum' t by which she is bound, as the wife had done in Dankel v. Hunter and Wife, 11 P. F. Smith 382. Nothing less than that would bind her: Glidden v. Strupler, 2 P. F. Smith 400. The letter and policy of the law forbid a wife to convey her interest in land otherwise than by the exercise of her own free and untrammelled will. A purchaser by contract from her husband, must be presumed to know this essential requisite, and, therefore, that he takes the risk of the wife’s uniting in the deed, or of his common-law right of action for damages against the husband. It may be answered that the ap- ” ” .e does not ask for a decree that the wife join in the deed; but only that one-third of the purchase-money be retained to indemnify the vendee against her contingent claim, and that, therefore, her free will is not constrained. The specific performance of a contract in equity is of grace, not of right. It rests in the sound discretion of the chancellor. In an action of ejectment by a vendee against a vendor, to compel the specific performance of a contract for the sale of land, the plaintiff cannot recover, if the defendant be a married man and his wife refuses to sign the deed: Clark v. Seirer, 7 Watts 107; Hanna v. Phillips, 1 Grant 254; Weller v. Weyard, 2 Grant 103. It was said by Gibson, C. J., in Clark v. Seirer, supra, “it seems to be at last settled on principles of policy and humanity, [147] that equity stirs not to enforce a contract which involves in it a wife’s volition in regard to her property, and it seems strange to us now, that courts of chancery should ever have hesitated about it. Contrary to the benign spirit of the common law, the avowed purpose of process of contempt against the husband, is to extort a conveyance from her affection, or from her fear.” It must now be considered the settled law of this Commonwealth, that specific performance of an agreement to sell land, will not be decreed against a vendor who is a married man, and whose wife refuses to join in the conveyance so as to bar her dower, unless the vendee is willing to pay the full purchase-money, and accept the deed of the vendor without his wife joining therein: Riesz’s Appeal, 23 P. F. Smith 485. In giving the opinion of the court in that ease, it was well said by Mr. Justice Sharswood, “ The same sound policy whieh forbids a decree for the execution of a deed by the husband, to be enforced by his imprisonment, if he cannot obey, prevents any decree looking to compensation, abatement or indemnity.” The decree of the court below must therefore be reversed. Inasmuch, however, as upon the argument the counsel for the appellee expressed a desire to accept a deed from the appellant alone, rather than have no decree in his favor, we will send the case back in order that such a decree may be made. Decree reversed, and record remitted, that a decree may be entered conformably to this opinion, and the appellee is directed to pay the costs of this appeal.