Haden v. Falls

Buchanan, J. (after making the foregoing statement), delivered the opinion of the court. In considering the case a serious question arises, not raised in the answers, nor discussed at the bar, and that is whether the coverture of Mrs. Falls does not stand in the way of any decree for the specific performance of the agreement against her husband. The bill does not make the wife a party, but after alleging that her dower interest in the land is of little, if any, practical value, since there exist upon the land two deeds of trust, in which she united with her husband, securing sums aggregating more than the full value of the land, the bill asks, among other things, that the contract between the appellant and Falls and the deed signed by him to the appellant be declared of binding force and effect, “and that specific performance of the contract and said deed and each of them be decreed; and if the same cannot be fully enforced by reason of the wife of said W. T. Falls not having joined or united therein, then that the said contract and deed be enforced with the further provision made for the protection of this complainant against any outstanding dower interest, if such there be, in the wife of said Falls; that the consideration agreed to be paid or delivered — 786 — by your complainant to the said W. T. Falls be under the orders and proceedings of this court, or through some receiver or commissioner appointed by it, sold and the proceeds retained so far as need be for your complainant’s protection against said outstanding dower interest, if any, and to the payment of said Falls’ obligations in said contract aforesaid to your complaintant; that a personal decree be entered against the said W. T. Falls for any and all liabilities owing by him to your complainant and growing out of the said contract, and that all necessary and proper accounts be ordered and taken,” and for general relief. It is well settled in this State and generally that a wife cannot be compelled to unite with her husband in conveying land under his contract to sell. 1 Minor on Real Property, sec. 318, and cases cited in note 5, and cases cited-in note to Aiple-Hemmelmann v. Spelbrink, 14 Ann. Cas. 652, 671. But the courts are not agreed whether or not such a contract will be specifically enforced when, because of the refusal of the wife to unite in the conveyance, the purchaser demands an abatement of the purchase price or an indemnity by reason of such refusal. In many jurisdictions, including our own, it seems to be settled that in such a case specific performance will not be decreed. See note to Aiple-Hemmelmann v. Spelbrink, supra, p. 671, where many cases are collected. In MeGann v. James, 1 Rob. (40 Va.) 256, no opinion was delivered, but the case made and the question decided is thus stated in the head-note by Mr. Robinson: “A husband sells land in which his wife has an estate in fee, and executes a bond to the purchaser, conditioned that he and his wife will make a deed to the purchaser within a specified time. After that time the husband states that his wife has declinded joining him in the deed, and has forbidden him to convey his estate, and he refuses to make any conveyance. Thereupon a bill is filed by the purchaser against — 787 — the husband, stating that there are children of the marriage, claiming that the husband is therefore 'entitled to a life estate and praying that he may be decreed to convey to the complainant all his interest in the land, reserving to complainant his right of action at law upon the bond against the husband for failing to procure his wife to unite with him in the conveyance. The bill being demurred to, the circuit court sustains the demurrer and dismisses the bill, and this decree is affirmed.” In the case of Clark, &c., v. Reins, 12 Gratt. (53 Va.) 98, it was held that a court of equity will not decree a specific performance of a contract by a husband and wife for the sale of the wife’s land at the suit of the vendee, the wife refusing to execute the contract, nor will the court compel the husband to convey his life estate to the vendee with compensation for the failure of the wife to convey her interest in the land. In that case, Judge Daniel, who delivered the opinion of the court, after discussing the cases of McCann v. Jones, supra, and Evans and Wife v. Kingsbury, 2 Rand. (23 Va) 126, 14 Am. Dec. 779, and Watts v. Kenny and Wife, 3 Leigh (30 Va) 272, 23 Am. Dec. 266, said: “The opinion,” referring to Judge Tucker’s opinion in the last named case, “was approved by the whole court, as was also that of Judge Green in Evans and Wife v. Kingsbury. Whilst, therefore, I do not find any precedent in our reports of a direct refusal by this court to decree at the suit of the vendee the specific performance of a sale by the husband of the wife’s land, yet in the absence of any case or opinion here questioning the propriety of the two last cited decisions, I feel no hesitation in recognizing them as true expositions and ruling adjudications of the law of this case.” The cases of Evans and wife v. Kingsbury and of Watts v. Kinney and Wife were each suits by the husband and wife against the vende'e for a specific execution of the con — 788 — tract of the husband, against his vendee. In these cases the court found it necessary to consider and decide what ought to have been the holding if the suits had been brought by the vendee, and in each of them the court held that such a decree could not have been properly rendered in favor of the vendee, and refused to decree specific performance in favor of the vendors on the ground of Avant of mutuality. In Graybill, &c., v. Brugh, 89 Va. 895, 17 S. E. 558, 17 L. R. A. 133, 37 Am. St. Rep. 894, it was held that “specific execution of an agreement,” quoting with approval the language of Warville on Vendors and citing Clark v. Reins, “to sell and convey will not ordinarily be decreed against a vendor, a married man, whose wife refuses to join in the deed, where there is no proof of fraud on his part in her refusal, unless the purchaser is Avilling to pay the full purchase money and accept the deed without her joining.” See Minor on Real Property, sec. 318. The rule announced in the last named case and the reason therefor, Avhether the interest of the wife be her contingent right of dower or a greater interest, is clearly stated by Judge Sharswood in Riesz’s Appeal, 73 Pa. St. 490, 491. After referring to several cases in that jurisdiction on the question, he says: “These cases settle, if any amount of authority can settle anything, that in Pennsylvania specific performance of an agreement to sell real estate 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, indeed, the vendee is willing to pay the full purchase money and accept the deed of the vendor without his wife joining. The policy of these decisions is very manifest. The wife is not to be wrought upon by her love for her husband and sympathy in his situation to do that which her judgment disapproves as contrary to her interest, nor is he to be tempted to use undue means to procure her consent. The vendor must b'e — 789 — left in such cases to his action at law to recover damages . . . The case does not fall within the principié of those decisions where the vendor, who cannot make title to all he has contracted to convey, is held to be not thereby relieved from specific performance as far as it is in his power, but shall be compelled to execute his contract with a reasonable abatement in the price. The right of dower of the widow is of such a contingent nature, depending, as it does, as well upon her surviving her husband as on her continuance in life after his death, that no abatement in the price can be made which will be just to both parties, without in effect making a new contract for them—a contract which perhaps, in the first instance, neither party would have come into, certainly not the vendor. Receipt of the purchase money in full may have been the main object of the sale to enable him to pay debts or to carry on other plans. If he is to be subjected to serious pecuniary loss by his wife’s refusal to join, it will operate almost as powerfully as the peril of imprisonment as a moral coercion and compulsion upon her to yeild her consent, instead of that free will and accord which the law jealously requires her to declare by an acknowledgment upon an examination before a magistrate separate from her husband.” “The policy of the law,” as was said by Lord Eldon in Emory v. Warc, 8 Vesey, Jr. (Eng.) 515, “is that a wife is not to part with her property but by her own spontaneous and free will. If this was perfectly res integra, I should hesitate long b’efore I would, say the husband is to be understood to have gained her consent, and that the presumption is to be made that he obtained it before the bargain, to avoid all fraud that might afterward have been practiced to procure it. I would have hesitated long in folloAving up that presumption rather than the principle of the policy of the laAv, for if a man chooses to contract for the estate of a married woman or an estate subject to dow — 790 — er, he knows the property is hers altogether or to a given extent. The purchaser is bound to regard the policy of the law, and what right has he to complain if she, who, according to law, can part with her property but by her own free will expressed at the time of the act of record, takes advantage of the locus penitentiae; and why is he not to take his chance to damage against the husband?” See also Peeler v. Levy, 26 N. J. Eq. 330, 335; Pom. Spec. Perf. Contr., sec. 461; Cowan v. Kane, 211, 111, 575, 71 N. E. 1097, 41 Ohio St. 641; Fortune v. Watkins, 94 N. C. 315; Aiple-Hemmelmann v. Spelbrink, supra. There is neither allegation nor proof that Mrs. Falls’ refusal to unite in the conveyance signed by her husband was procured by his fraud. It is true in this case, as in the case of Clark v. Reins, supra, that no objection was made in the answers of any of the defendants to the specific execution of the husband’s contract on the score of the coverture of the wife of the vendor, nor was that objection urged in argument here; but as the denial of a court of equity to specifically execute a husband’s contract for the sale of land in which his wife has an interest, where she refuses to join in the conveyance, unless the purchaser is willing to pay the full purchase price, claiming neither an abatement thereof nor indemnity on that account, is based upon principles of public policy, the fact that the objection was not made in the answers would not seem to be material. In Clark v. Reins, supra, p. 110, in discussing this question it was said: “It is true no objection to a specific performance was made by the defendants in their answers on the score of Mrs. Branch’s coverture, and it is urged on b’ehalf of the appellee that this court ought not to proceed on the supposition that she may not be willing to unite in the conveyance. The same feature existed in the cas'e of Emery v. Wane,-yet it was not regarded by the master of the rolls when the case was before him (5 Yesey Bep. 847) — 791 — oí’ by Lox’d Eldon on the appeal (8 Yesey E. 505) as a circumstance of any moment. In that cas'e, as in this, the defendants all united in one answer, in which they resisted the decree oxx grounds wholly independent of the coverture of some of the female defendants, yet the court gave the same weight to the objection as if it had been distinctly and formally presented. The appellants all strenuously resisted the decree ixx the circuit court and are still seeking to reverse it here, and little, if axxy, chance of benefit to the appellee could be anticipated from sending the case back in order, by privy examination (indeed, if such a practice in any case could be allowed here), to ascertain whether Mrs. Branch will choose to unite in a deed, as there can be little or no doubt as to what her response would be.” Mrs. Falls testified in this case, and while she stated that she would have been willing to have united with her husband in a conveyance made in accordance with the terms and conditions of the agreement between her husband and the appellant as coixstrued and understood by her husband and herself, it is clear from her evidexxee that she is unwilling to unite with him in a conveyance upon the terms of the agreement as construed and understood by the appellant and as he seeks to enforce it. This being so, and the bill of the appellant showing that he is not willixxg to pay the full purchase price and accept a deed from his vendor alone, but is asking that a portion thereof be retained by the court for his protection against the outstanding dower of the vendor’s wife, the appellant is not entitled to a decree for specific perfox’manee, and the trial court did not err in dismissixxg his bill. Affirmed.