Schwoerdfeger v. Kelly

Per Curiam, The bill in this case was for the specific performance by a husband and wife of a contract for the sale of real estate of the former. It is averred in the bill that the husband agreed in writing to sell a house for $4,500, of which amount $10.00 was to be paid when the agreement was signed; that at his request the payment was deferred until he could inform his wife of his agreement; that eleven days later, after he had informed her of the agreement, $10.00 on account of the purchase money “was paid to and received by him at his residence in this city in the presence of his said wife and with her assent and approval;” that subsequently the purchaser gave the tenant, in possession of the house, a valuable consideration to remove therefrom and went into possession thereof with the knowledge and assent of the husband. Separate demurrers filed were sustained, but that of the husband with leave to the plaintiff to amend by stating his willingness to accept a deed without joinder of the wife. It is unnecessary to consider the effect of recent legislation in enlarging the powers of a married woman in contracting for the sale of her real estate, or the decisions fixing her liability under such contracts. We do not find that the proof of the averments in the bill would establish any contract by the wife. She was not asked to join in the written agreement, and she made no agreement, written or verbal, to release her contingent right of dower. Even if an agreement could be inferred from her “assent and approval” when $10.00 was paid her husband, it was an agreement within the statute of frauds and could not be enforced by a decree for specific performance. The decree of the court below is affirmed at the cost of the appellant.