Gillett v. Warren

PARKER, J. Administba-tioh: community property: community debts. 1. The interest or property of the wife in the piano under the contract was community property. Under the community system 'in force in this Territory, and as it existed under the laws of Spain and Mexico, the surviving husband has the right to administer upon community property to the extent at least of selling the same to pay the debts of the community. And this is true notwithstanding the statutes for the administration of the estates of deceased persons, the latter being held to be in addition to and not exclusive of the right of the husband to administer to the extent of paying community debts., Crary v. Field, 9 N. M. 222. The decision in; Crary v. Field had reference to sales of real; estate by the surviving husband, but no distinction in this regard exists between real estate and personal property, either under our statutes or the civil law of Spain and Mexico. This is what the surviving husband, in effect at least, did in this case. He delivered the piano to a third party upon an understanding that the third party-would complete the purchase price to appellant and would pay him $175 in addition for his interest or the interest of the estate therein. In this manner he fixed the pecuniary value of. the piano to him and the estate of the deceased wife. This action being within the scope of his authority is binding upon him and the minor child whom he represented. Specieio performance of contract with deceased: when. 2. Where articles of personal property are peculiar and individual in their character, or have a special value on account of the associations connected with them, as pictures, curiosities, family furniture or heir-looms,, specific performance of a contract in relation to them will be decreed. 2 Beach Mod. Eq. Jur., Sec. 598, and cases cited; Pomeroy Spec. Perl, Sec. 12. The piano in this case was of ordinary make and possessed no qualities peculiar to itself or which rendered it difficult of duplication. So far as the instrument itself was concerned, money would buy in the market another just like it. It was, however, the piano which the deceased wife and mother had used. Associated with her mem.ory, it would seem that it should possess a value not to be measured in money. But the surviving hfisband, acting within the scope of his authority as survivor and administrator, set a money price upon its value and thus robbed it of all special and peculiar value to him or to the estate. It became from that moment a chattel of nothing more than ordinary and common value, easily measurable in money damages as ascertained in courts of law. Under such circumstances, equity will not interfere to specifically enforce the contract for its delivery. Pomeroy Spec. Perf., Sec. 12; Dowling v. Bitjemann, 2 J. & H. 544; Scott v. Billgerry, 40 Miss. 119. We have not been referred to any case or text writer other than Dowling v. Bitjemann and Pomeroy, supra, where the distinction just drawn has been referred to, but it must be apparent that the distinction is sound and rests upon well established principles. The foundation for equitable jurisdiction to specifically enforce contracts of this kind rests upon the idea that the special interest, pretium affec-tionis, is inherently peculiar to the plaintiff, and is of such a character that it cannot be measured jn money or assessed by a jury in a proceeding at law for damages. But when the parties in interest have fixed the money value of such a chattel, it no longer possesses a value peculiar to them or different from its value at law. INSOLVENCY of vendor: specific performance: contract. 3. It is contended by appellee that the insolvency of appellant and the consequent inadequacy of the remedy at law, gives the court jurisdiction to specifically enforce the contract. In a few cases the insolvency of the defendant has been alluded to by the courts as an additional reason for administering the equitable remedy of specific performance. Chicago, R. I. & P. Ry. Co. v. Union Pac. Ry. Co. et al., 47 Fed. 15; Parker v. Garrison, 61 Ills. 250; Avery v. Ryan, 74 Wis. 591; Clark v. Flint, 22 Pick. (Mass.) 231, 33 Am. Dec. 733. But we do not understand these or any other cases to announce a doctrine that insolvency, standing alone, will authorize the specific enforcement of contracts not furnishing, for other reasons, a basis for equitable cognizance. Pomeroy Spec. Perf. Sec. 26, 27. See Crawford v. Bradford, 2 So. 782; United N. J. R. & Co. v. Penn. R. Co., 28 N. J. Eq. 261; Heilman v. Union Canal Co., 37 Pa. St. 100. It follows from the foregoing conclusions that the contract in this case under the facts and circumstances surrounding the samé cannot be specifically enforced. The cause will be remanded with instructions to dismiss the complaint, and it is so ordered. Mills, C. J., and McFie, J., concur.