Burk v. Serrill

Mr. Justice Gordon delivered the opinion of the court, These parties were before us in January 1874, as plaintiff and defendant in a bill in equity, brought by Serrill to compel Burk to execute a deed for the premises which were the subject of the agreement of July 1870, upon which agreement the present action is founded. We then determined, Justice Mercur delivering the opinion of the court, that the specific execution thereof could not be decreed against the vendor, unless the vendee should be willing to pay the full amount of the purchase-money and accept the deed without the execution thereof by the wife. The reason given by us for this conclusion was that a court of equity would lend its aid to nothing tending, even remotely, to coerce a wife to relinquish the rights conferred upon her by the laws of the land: Burk’s Appeal, 25 P. F. Smith 147. Our statutes make very special provision that she shall part with her dower in her husband’s land only upon her own free will and consent, and the magistrate, before whom her acknowledgment is to be taken, is charged to see [419] to it, that there has been no undue influence brought to bear upon her. If, however, her refusal to execute the deed is to suspend the payment to the husband of one-third of the purchase-money during her life, or to subject him to an action for exemplary damage, we can readily perceive that, in this manner, a coercive influence may be brought to bear upon her through her husband, which she may not be able to resist, and thus by indirection that may be effected which could not be accomplished by direct means. This method of compelling a wife to do what the law endeavors to protect her in not doing, is something that the courts have long ago determined not to sanction. In the equity case just referred to, at the instance of the plaintiff’s counsel, we directed that a decree might be entered against the defendant, that upon the payment of the purchase-money to him in full he should execute a deed for the premises. It seems, however, that Serrill, or the company for whom he was acting, did not see fit to accept of this order, but resolved to resort to this action at law, the results of which we have before us. We need not go over the exceptions in detail, for one prime question covers them all. The learned judge of the Common Pleas instructed the jury, that they might find from all the evidence submitted to them that Burk fraudulently induced his wife to refuse to sign the deed, that he might in this manner escape from his own contract, and that if they so found, they might inflict damages upon him to an amount even exceeding the full value of the land. The result of this charge was a verdict of $9166.66, though the amount actually paid by Serrill to Burk, on the contract, was but $50, and the actual incidental expenses, as testified to by Serrill himself, were so trifling that he did not think it worth his while to fix the amount. Of this instruction, the defendant complains, and we think justly. There was no affirmative evidence whatever tending to show that Burk had either directly or indirectly influenced his wife’s action in the matter; on the other hand, he, his wife, and Thomas Johnson, swore positively, that from the first, she of her own accord refused to execute the deed. This should have settled the matter, and the jury should have been informed that they were to render a verdict for compensatory damages only. The fact upon which the court seemed to lay so much stress, that is upon the lack of promptness in the defendant in informing Serrill that his wife had refused to sign the deed, of itself amounted to nothing. In the question of fraud, time was of no consequence whatever, as it turned upon the single fact that Burk had prevailed upon his wife to refuse her assent to the contract ; that established and the case was made out; that negatived and the ease fell, at least so far as exemplary damages were involved. This question of time may be important in the settlement of the actual damages sustained by the plaintiff; as if he was [420] thereby induced to have the papers and briefs prepared, or searches or surveys made, the trouble and expenses of which he might have been saved by timely information of the wife’s determination. In this view of the matter this delay may have some significance, but in no other. On the whole we cannot see that the plaintiff is entitled to much sympathy in this matter. He knew that the wife’s assent must be obtained or her right of dower could not be divested, and if he chose not to consult her, and thus ran the risk of finally obtaining that assent, he has himself to blame if his success was not what he expected. That the husband said that his wife would do what he wanted her to do does not alter the case, for, without consulting her, he had no right to make any such engagement for her. However this may be, it is certain we cannot, in view of our statutes and decisions, permit the will of the wife to be coerced, through the pressure of heavy exemplary damages upon her husband, resulting from an assertion of her own undoubted right. The judgment is reversed and a' venire facias de novo awarded.