211 Mo. 671 | Mo. | 1908
Lead Opinion
IN BANC.
— Upon reargument and after due consideration, the opinion of Woodson, J., delivered in Division No. 1, is adopted as the opinion of this court, except in the following matter:
Since counsel for respondent stated in open court that if the court should conclude that it was not entitled to a deduction of any sum from the purchase price of
IN DIVISION ONE.
— This action originated in the circuit court of St. Louis county, and has for its object the specific performance of a written contract for the sale of certain real estate located in said county, executed by the defendant in favor of the plaintiff, a corporation, agent.
The petition was in the usual form, stating the substance of the contract, a tender of consideration agreed upon, and ended with a prayer for a decree in con
The answer was, first, a general denial, second, that, on December 23, 1905, defendant constituted plaintiff, by written commission, his agent for the sale of the real estate described in the petition, which authority expired January 20,1906; that during the existence of said authority, and on January 17th, plaintiff applied to defendant for the extension of said authority to sell the property for a period of forty-five days, and requested the defendant to come to plaintiff’s office and sign a paper extending such authority; that defendant went to plaintiff’s office and thereupon plaintiff produced the paper writing filed as an exhibit to plaintiff’s petition and requested the defendant to sign it, and that, through its officers, plaintiff then and there represented to the defendant that said paper writing had the meaning and legal effect of extending plaintiff’s authority to sell the property; that, believing said representations, defendant signed the paper; that prior to signing the said paper, upon reading the same, defendant noticed that the paper bound him to sell the property for $20,000; that thereupon defendant remonstrated with the plaintiff, and plaintiff, in order to induce defendant to sign the same, represented that it would procure $22,000 for said property if defendant would sign the paper and grant plaintiff an extension-of authority to sell the property; that at the time defendant notified plaintiff that he would sign the same provided his wife would consent to sell the same for $20,000, but that his signature to the said paper was on condition that his wife would consent to sell the property for that price; that thereafter and after signing said paper he consulted his wife, who refused to consent that the property be sold for that price and refused to join in the sale of the said property at the price of $20,000; that defendant notified plaintiff of his wife’s decision, and further notified plaintiff that
Further answering, defendant averred that at the time the plaintiff was acting for him in the sale of said property, and without the knowledge and consent of the defendant, the plaintiff was also acting for an association or society known as the Brothers of Mary in endeavoring to purchase the said property for them, and that when the contract was signed by defendant the plaintiff was acting for the Brothers of Mary.
For another answer defendant averred that neither under the authority of December 23, 1905, nor the alleged contract under which this suit was brought, did plaintiff enter into any binding contract in writing with the Brothers of Mary for the sale or conveyance ■of said property, but that if such contract existed with the Brothers of Mary it was a mere verbal understanding which could not be enforced by the defendant.
The plaintiff met the answer with a general denial.
The case came on for trial before the court on June '28, 1906, and after hearing the testimony the ordinary decree of specific performance was entered on July 23, 1906, interlocutory in its nature; the parts thereof which concern us are as follows:
‘ ‘ It is further ordered, adjudged and decreed, that if the defendant is unable, or for any reason fails to procure the release to the plaintiff of his wife’s inchoate dower right in said real estate, then the value -of the said right shall be ascertained at a time to be fixed by this court, and deducted from the purchase price of the said real estate according to the terms of the said contract, dated January 17th, 1906, and the cash, as well as deferred payments, to be made by the •
“It is further ordered, adjudged and decreed, that if the defendant fails or refuses before the 6th day of September, 1906, to execute and deliver unto the plaintiff such deed of conveyance of said real estate, clear of encumbrance and with release of inchoate right of dower as aforesaid, then the plaintiff and defendant shall appear in this court on the said 6th day of September, at 9:30 a. m. of that day, and in court and under its direction, exchange deeds, money and notes as hereinbefore required, and in case there shall be no release of the inchoate right of dower of defendant’s wife, the court shall thereupon on said day or at some later day which may be designated therefor, hear the evidence upon and determine the value of the said inchoate dower interest and the amount of cash and notes to be paid and delivered by the plaintiff, in accordance with this decree.....” •
Afterwards, and on September 6th, a final decree was entered, parts of which, so far as material, are as follows :
“And the defendant then and there in open court refuses to convey the real estate described in the decree herein, entered on the 23rd day of July, A. D. 1906, and refuses to perform any of the matters and things required to be performed by him by said decree, and the court thereupon proceeds to hear evidence as to the value of the inchoate right of dower of the wife of the defendant. And the court being fully advised in the premises doth find from the evidence heretofore heard at the trial of this cause that the defendant will be sixty-four years old on the 9th day of December, A. D. 1906, and that the wife of the defendant will be fifty-nine years of age on the 10th day of January, A. D. 1907; and the court doth further find from the evidence, that the present value of the inchoate right of. dower of the wife of the defendant in the real estate in
In due time defendant filed his motion for a new trial, which was by the court overruled, and, after excepting to the ruling of the court, he timely appealed the .cause to this court.
Plaintiff introduced evidence tending to prove that it was a corporation, duly organized and doing business in the city of St. Louis as a real estate agent; that prior to December 23, 1905, a representative of a religions organization of Belgium, known as the Brothers of Mary, called upon plaintiff with a view of purchasing real estate in St. Louis county; that after showing the Brothers other pieces of property they were shown the property in question, which seemed to be what they wanted; that plaintiff approached defendant and asked him what he asked for the property, and at the same time he was told that said religious organization was looking for a location, and that his property seemed to suit them, and plaintiff told him that they believed they could sell his property to that organization.
Defendant thereupon gave to plaintiff the following written authority to sell the property:
“St. Louis, Dec. 23rd, 1905.
“ Aiple & Hemmelmann Real Estate Co., St. Louis, Mo.
“You are hereby requested to sell the following property in St. Louis county, being ninety and 9-100 acres on the west side of Denny Road, running through to Spoede Road, and bounded east by property of Schnieder and West End Park, and including everything on premises, excepting live stock, for the sum of twenty thousand on terms of one-third cash, balance 5
“"Will give warranty deed and perfect title, and for the services of Aiple & Hemmelmann Real Estate Company a commission of 5 per cent, for such sale.
“This authority to expire January 20th, 1906.
Louis Spislbe.ink.”
Defendant told plaintiff that he had been holding the property at $25,000, and asked plaintiff to try to get $22,000.
That on the 17th day of January, 1906, said representatives informed plaintiff that they would recommend to the parent organization in Belgium the purchase of defendant’s property at the price of $20,000, but that they would have to get an option, as it would require six weeks to get a reply.
Thereupon, plaintiff communicated with defendant, and told him that the organization would purchase the property, if the parent organization in Belgium approved the purchase, but that in the meantime they would require an option to purchase the same for forty-five days. That defendant consented to give such an option for the consideration of $59, and then and there signed the option contract offered in evidence, which is in words and figures as follows :
“St. Louis, January 17th, 1906.
“This agreement made this 17th day of January, 1906, between Louis Spelbrink of the city of St. Louis, and State of Missouri, party of the first part, andAiple & Hemmelmann Real Estate Company, agent, of ■ the same place, party of the second part.
“Witnesseth, and whereas, the party of the first part, for and in consideration of the sum of fifty dollars, in hand paid by the party of the second part, the receipt of which is hereby acknowledged, does hereby give and grant to the party of the second part, the option, privilege and right of purchase for forty-five
“Ninety and 9-100 acres on the west side of Denny Road, running to Spoede Road, and hounded south by property of Schneider and West End Park, and including everything on the premises, excepting live stock, for the sum of twenty thousand dollars, payable in terms of one-third cash and the balance in three years at 5 per cent.
. “Party of the first part hereby agrees and guarantees to deliver to party of second part, on payment of' said purchase money, a warranty deed to said real estate, and that title to said land shall be perfect and free from all encumbrances, liens or adverse titles. Should the party of the second part, within said period of forty-five days, accept the proposition of the first party to, sell said real estate, and agree to take the same at the price and on the terms aforesaid, and tender to the party of the first part the said sum of twenty thousand dollars, then the party of the first, part hereby binds himself to execute to, said party of the second part a good and sufficient deed of conveyance, as above for said real estate.
“In testimony, we, the parties hereto, have hereunto set our hands and seals in triplicate this 17th day of January, 1906.
“Louis Spelbrink. (Seal.)
--------(Seal.)
“I agree to pay Aiple & Hemmelmann R. E. Co. a commission of five per cent on consummation of above sale.
‘ ‘ Louis Spelbrink. (Seal.) ’ ’
The next stepi in the transaction was a letter written by defendant to plaintiff, but not dated or signed, and is as follows:
“Dear Sir: Gentlemen, I herewith enclose to yon yonr check for $50, of date January 17,1906, payable to my order, as earnest money on my farm in St. Louis county. On examination of the agreement you give me is not signed by you or agent or otherwise, so it binds me, not you nor your man, hence it is not a valid agreement, and again my wife will not sign the deed, so there is no other alternative but to return your check.”
Said letter was enclosed in an envelope, which bears the post mark, January 26th, 10:30' p. m. The check mentioned in said letter is that of plaintiff’s,, dated January 17, 1906, and drawn to the order of defendant, on the Third National Bank, St. Louis, Mo.
In answer to this communication, plaintiff sent to defendant the following letter:
“St. Louis, Jan. 27th, 1906.
“Louis Spelbrink, Esq., City:
“Dear Sir: Ye received this morning a communication on what appears to be the letterhead of the Louis Spelbrink Livery and Undertaking Company, which communication is neither dated nor signed, but which was enclosed in an envelope with the Post Office stamp ‘January 26th, 1906, 10:30' p. m.’ .
“Inasmuch as our check for fifty dollars, given to you on January 17th 1906, in consideration for a forty-five day option on your ninety and 9-100 acres of land on the west side of Denny Road, was enclosed in the same envelope, we take it for granted that you wrote the letter, or that it was at least at your direction, and we therefore direct this answer to' you.
“We herewith return to you the check which we gave you, and respectfully inform you that you will be held to the strict performance of your option agreement, dated January 17th, 1906.
“P. S. We enclose you a typewritten copy of the communication above referred to.”
“St. Louis, Feh. 26th, 1906.
“Mr. Louis Spélbrink, No. 1317 Franklin Ave., City:
“Dear Sir: Referring to our telephone communication of to-day, will say that we are now ready to close the purchase of your farm property.
“Kindly let us know whether you desire to prepare the papers or whether we shall attend to this; also, whether you desire all cash or one-third cash and the balance secured by deed of trust on the property. ’ ’
Thereafter, by letter dated February 28th, 1906, the defendant communicated with plaintiff as follows:
St. Louis, Mo. Feb. 28, 1906.
“ Messrs. Aiple & Hemmelmann Real Estate Co.,
No. 622 Chestnut St., City.
* ‘ Gentlemen:
“As I wrote you on the 26th of January that so far as there was any contract or option to sell my farm to you for $20,000' was concerned, I notified you that the contract was -neither binding on me nor .you. It was never a contract at any rate,- because never properly signed, henee I notified you that I had rescinded, and so notify you again that it is of no binding on me, and I now herewith enclose you your check, dated January 17, 1906, for $50, made payable to my order. As you will see I have made no attempt to collect the same.
“This must end the matter as far as I am concerned. ’ ’
On March 1st, 1906, Albert J. Aiple, Theo Hemmelmann, Jr., and Henry Kortjohn went to Third National Bank and drew $20,000 in U. S. legal tender notes. • Thereafter the said three persons called on the defendant at about 8:20 a. m. of March 1, 1906, tendered back the $50 check to him, which he refused to take. They told him that they had'with them $20,000
Defendant was also informed that if he wanted only one-third purchase price in cash, they were ready to close the option in that way, in which event they wanted defendant to sign the deed to Charles E. Clore, which is an ordinary warranty deed, and that they would deliver to him the deed of trust executed by Charles E. Clore, and the seven notes of Clore, telling him that the deed, in case defendant wanted only one-third cash, was made to Clore, and the deed of trust and notes given by Clore, because, if the conveyance was made to the Brothers of Mary, the deed of trust must be sent to Belgium for execution.
. They offered to exhibit the deeds aforesaid and the money to Spelbrink so that he might suggest any changes that he wanted, but the defendant refused to look at them, saying that his wife would not sign the deed, and asking the parties to call on Mr.. R. M. Nichols, who had authority to act for him.
Thereupon, on the same day, Hemmelmann and Kortjohn, with the money and all said papers, proceeded to Mr. Nichols’s office and told him what had happened at Mr. Spelbrink’s place, and offered to exhibit the papers to him. He said that he would waive the tender, and Hemmelmann and Kortjohn then left his office.
Thereupon, on Kortjohn’s advice, respondent prepared a warranty deed from Louis Spelbrink and wife to “Aiple and Hemmelmann Real Estate Co., Agent,” and made and executed a deed of trust from said company as agent to R. M. Nichols, trustee for Louis Spelbrink, and also executed seven notes, all of which papers were presented to Mr. Nichols by Henry Kort
Plaintiff also showed that the defendant was the owner in fee of the property in question. . Plaintiff introduced evidence tending to show that the Carlisle mortality tables were the same as those expressed in the Session Laws of 1905; that under these tables Mrs. Spelbrink, wlm was fifty nine years old, would have an inchoate right of dower which the witness valued at $1,069'.60; all of which testimony was objected to for the reasons stated.
It appeared in evidence at the trial that Mr. Spelbrink was a married man at the date of the contract in suit and that his wife at that date was of the age of 59 years and he of the age of 60'.
The defendant then offered the following evidence :
An admission signed hy Mr. Kortjohn, attorney for the plaintiff, which reads as follows:
“It is hereby stipulated* and agreed that Mrs. Spelbrink, wife of the defendant, being- absent by reason of her illness, if she were present, would testify that she refused to sign the deed to the property described in the petition, for the reason that she believed that the amount to be received by said conveyance would not be sufficient amount for said property, under the paper writing- constituting plaintiff’s Exhibit A to its petition, and that she did not refuse to sign by collusion with her husband, the defendant, or any other person, for the purpose of preventing a sale of the property, but plaintiff reserves the right to object to said testimony on account of the incompetency of witness and irrelevancy of her testimony.”
“Mr. Kortjohn: We object to Mrs. Spelbrink as a witness, for the reason, she being the wife of the de
The objection was by the court sustained, and defendant duly excepted.
Over plaintiff’s objections and exceptions, the defendant testified that at the time he signed the contract of sale he told plaintiff that he signed it subject to the approval of his wife; he also testified on direct and cross-examination that, when he notified his wife of the contract, she told him she would never sign the deed, because he was not getting one-half what the farm was worth; that she has at all times refused and still refuses to sign the deed, and that she so refused at her own instance, uninfluenced by him in any manner whatever.
Plaintiff in rebuttal introduced evidence tending to contradict the statement of defendant to the effect that he told plaintiff at the time he signed the contract that he did so subject to the approval of his wife.
I. The first reason assigned by the defendant for a reversal of the judgment is that the evidence shows that it was the intention of the parties that the optional contract executed by defendant, on January 17th, 1906, in favor of the plaintiff, was to be signed by both'the plaintiff and defendant, and for that reason it was not binding upon him until signed by plaintiff.
We are unable to concur in that view of the evidence. The contract upon its face shows that it is nothing more nor less than an ordinary option given by Spelbrihk to the plaintiff as “agent” to purchase the land within forty-five days from the date of the contract, upon certain terms and conditions.
The mere fact that the contract refers to the plaintiff as “party of the second part” has no more signification than if it had simply granted the option
The contract is unilateral and does not purport to obligate plaintiff to purchase the land or to do any other thing. Even the $50 consideration for the option, as expressed in the contract, was paid at the time by the plaintiff and receipted for. The plaintiff agreed to do nothing, and in that condition of things to* hold, in the absence of positive evidence to the contrary, that it was the intention that it should sign the contract would convict both the plaintiff and defendant of solemnly contracting, in writing and under seal, to do a vain and foolish thing. No court would be warranted in placing any such a construction upon the contract in question. When we read the entire contract from beginning to end, it is perfectly manifest that plaintiff paid to defendant the sum of $50* for an option to purchase the land in question, at any time* within forty-five days, upon the terms therein stated. The chief object in the interpretation of a contract is to get at the intention of the parties who made it: [Sedalia Brewing Co. v. Sedalia Water Works Co., 34 Mo. App. 49; Huse & Loomis Ice & Trans. Co. v. Heinze, 102 Mo. 245; Carter v. Arnold, 134 Mo. 195.] And, according to this rule, we must, therefore, decide this question against the defendant.
II. In this State it is no longer an open question that a court of equity will specifically enforce a unilateral written contract for thq sale of land, based upon a valuable consideration. [Smith v. Wilson, 160 Mo. 657; Warren v. Castello, 109 Mo. 338; Mastin v. Grimes, 88 Mo. 478.] The contract in question comes within the purview of the* rule just announced, and is therefore enforcible by a court of equity without there are facts and circumstances connected with and surrounding the transaction which would render it unjust and inequitable to do so.
The evidence in this case discloses the fact that at the time of the execution of the contract the defendant was married, and that the plaintiff had knowledge of that fact. Plaintiff testified and it stands uncontradicted that his wife at all times absolutely refused to join in the conveyance with him, and uninfluenced by him. The contract provides that, upon the payment of the purchase money the defendant will deliver to the plaintiff a warranty deed conveying unto it the said real estate clear of all encumbrances, liens or adverse titles.
The plaintiff does not contend or ask for a specific performance of the contract against the wife, she not being a party to the contract or suit, but it does contend that it is entitled to have the contract specifically enforced against the defendant, and that under his contract he be required to convey to it whatever title he owns and possesses in and to the land in question, and asks that the court ascertain and determine the present value of his wife’s marital interests in and to the property, and deduct the amount thereof from the agreed purchase price, and that he be required to receive the balance thereof in full payment of his interest in the land, and that he execute and deliver to plaintiff a warranty deed conveying to it said land, free and clear of all encumbrances, excepting the inchoate right of dower of his wife in and to the same.
The contention of the defendant that a court of equity will not decree a specific performance of a contract for the sale of real estate against a husband where the wife refuses to join in the conveyance, is not sustained by the authorities in the broad and unqualified sense in which the proposition is stated by his learned counsel. But the law seems to be well settled that if
In the discussion of this question the Supreme Court of New Jersey, in the case of Reilly v. Smith, 25 N. J. Eq. l. c. 159, used this language: ‘ ‘ There is no proof, nor is there any allegation of fraud on the part of the husband in her refusal. On the other hand, it clearly appears from the testimony that she is actuated by considerations having reference to her own interests alone. The court will not, under such circumstances, compel her husband to procure a conveyance or release by her, or require him to furnish an indemnity against her dower. [Young v. Paul, 2 Stockt. 401; Hawralty v. Warren, 3 C. E. Green 124; Riesz’s Appeal, 73 Pa. St. 485; Story’s Eq. Jur., secs. 731-735.] Inasmuch as it does not appear that the complainant is willing to pay the full balance of the purchase money and accept a deed from Smith alone, a decree for specific performance must be refused, and the complainant be left to his remedy at law. ’ ’
And the same court, in the case of Flaharty v. Blake, 10 Atl. 158, said: “In this case the husband said, at one time, that his wife was willing to join in the deed, but that she afterwards refused. The-wife, however, says that she never consented; but, from the time she understood that her husband had made the sale, she refused to join in the deed. As the testimony stands, I cannot say that there is fraud. Specific performance will be decreed by the husband, with costs, but without indemnity. ’ ’
The reason for the foregoing rule is stated by the
The Supreme Court of Pennsylvania, speaking through Sears wood, J., stated the rule and the reason therefor in this language: “But we consider the point as definitely settled in this State in the opinion of Chief Justice Gibson in Clark v. Seirer, 7 Watts 107, recognized and affirmed as it has been in many subsequent cases: Riddlesberger v. Mentzer, 7 Watts 143; Shurtz v. Thomas, 8 Barr 363; Bitner v. Brough, 1 Jones 138; Hanna v. Phillips, 1 Grant 256; Weller v. Weyand, 2 Grant 103. 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 be left in such cases to his action at law to recover damages.....The same sound policy which 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 case does not fall within the principle 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
In the case of Burk’s Appeal, 75 Pa. St. l. c. 145-7, the evidence showed that the vendor agreed to convey the “lands in fee simple, clear of all encumbrances,” and 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, when he informed her what he had done, she thereupon declared “she would not sign the deed, and has continued to persist in that refusal. ’ ’ The Supreme Court of Pennsylvania in that case said: “The wife then has not said or done anything wMch compels her to unite in the fulfillment of her husband’s contract. She has not executed and duly acknowledged any written instrument by which she is bound, as the wife had done in Dankel v. Hunter & Wife, 11 P. F. Smith 382.
When this case reached the trial court, in pursuance of the order before made, reversing it, the plaintiff, instead of having a decree entered against the defendant as directed by the court, resorted to an action at law to recover damages for the breach of the contract, and recovered a judgment against the defendant for $9,166.66, from which defendant appealed again to the Supreme Court. Upon the second appeal that court said: “We then determined [referring to the former opinion], 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
The court then proceeded by saying: ‘ ‘ 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 $9,166.66, 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
■ In discussing this same proposition, that great jurist, Chief Justice G-ibson, stated the law as follows: “It seems to be at last settled, on principles of policy and humanity, 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 contempt against the husband is to extort a conveyance from her through affection or fear. It would be a mockery to tell her she is free to act at
And the Supreme Court of North Carolina said upon this subject: “If the vendee knows that the vendor is a married man, he knows that his wife is entitled to dower, and that she cannot be compelled to release her dower right; and entering into the contract with such knowledge, he is not entitled, within the doctrine so well established, to ask anything more than the husband can give.” [Fortune v. Watkins, 94 N. C. l. c. 315.]
The Supreme Court of Illinois stated the law as follows: ‘‘But in ordering the specific performance of a contract for the sale of land which does not fix a sum as liquidated damages for the failure of the wife to join in the deed, the chancellor has no power to provide for a deduction from the purchase money of any sum as the value of the inchoate right.....The court, in considering the nature of an inchoate right of dower, in the case of Kauffman v. Peacock, 115 Ill. 212, said that whether it would ever become more than an expectancy would depend upon a fact which might never occur, that the wife should survive the husband and become entitled to dower; and that the inchoate right is not property which can be measured, and does not become property until the death of the husband. In attempting to support the decree, counsel say that a computation can be made upon the basis of the mortality tables. Such tables are used more from necessity than because they are a reliable guide in fixing the probable duration of any individual life, being mere averages of many lives, but we know of no table by which the value of an inchoate
The same question came before the Supreme Court •of Virginia, and that court stated the law in this language : “Specific execution of an agreement 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 willing to pay the full purchase money and accept the deed without her joining.” [Graybill v. Brugh, 89 Va. l. c. 899.]
The Court of Appeals of New York, in an able and well-considered case, said: “Under such a contract, to require the defendant to convey the Mott Haven property to the plaintiffs and pay such compensation as the court should determine its market value was impaired by the outstanding inchoate right of dower, or such sum as the real value of such right ascertained by the tables of mortality, would be harsh and oppressive. The defendant never made a contract to do this. . . .. . These tables when.applied to a great number of cases will, in the aggregate, show correct ■ results; hence, they may be used by life insurance companies with safety in fixing their rates, and are resorted to by
We have quoted quite extensively from a few of the many cases bearing upon the question under consideration, and they are in harmony with the overwhelming weight of authority in both this country and England.
We will now apply the law thus announced to the facts of this ease. Defendant was a married man at the time he signed the contract of sale, and that fact was known to the officers of the plaintiff company. She of her own free will and accord refused from the time she first heard of the contract down to the date of the trial to join in the deed of conveyance with her husband. There is no evidence in this record which tends to show that he in any manner whatever induced her to withhold her signature from the deed, except the mere fact that he also refused to make the conveyance; from that fact it may be argued that it can be inferred that he or his conduct influenced her in her declination to join him in the conveyance. This is simply a circumstance in the case and not substantial evidence which the chancellor can place in the scales of justice, and say that it has sufficient weight to justify the finding that he was responsible for her conduct in the premises. It could be just as logically argued upon the other hand, that it was her declination which caused him to refuse to execute the deed. But if we correctly understand plaintiff’s position, it does not lay much stress upon that contention ; but under paragraph IY of its brief, it admits that it “is willing and always has been willing to take such a title as appellant can convey,” and' alleges that it
Can' this be done? We think not. A court of chancery will not specifícálly enforce a contract for the sale of real estate against a married man where his wife refuses, to join him in the conveyance, without the vendee is willing to pay the full amount of the purchase money and' accept a deed from him, alone, and without his wife joining therein, containing the kind and character of covenants and agreements as are called for by the contract. The reason for this principle of equity is that such a court will not lend its aid, even indirectly or remotely, to coerce a wife to relinquish her inchoate right of dower in the face of the statute which expressly provides that the relinquishment of her dower rights shall be done as her own free act and deed. Besides this, dower has always been considered one of the wards of a court of chancery, and it has even extended its protecting hand to the estates of married women and minors. And if in the face of the statute and the equitable
There would be no justice or equity in such a decree, but, upon the other, hand, it would amount to moral coercion and duress in so far as she is concerned, and if perpetrated upon her by an individual, that is, if he had secured a deed from her by such means, without the intervention of a court, a court of conscience would not hesitate one moment in releasing her from the fetters which bound her thereto*. The law will not permit a person to acquire or retain the fruits of a contract obtained by such extortion. [Wilkerson v. Hood, 65 Mo. App. 491.]
And as said by this court in the case of Davis v. Luster, 64 Mo. l. c. 45, “But it has long been the habit of courts of equity to relieve parties from contracts made under the influence of threats, or of apprehensions not amounting to legal duress. Where a fraudulent advantage has been taken of the fears, the affections or the sensibilities of a party, equity will grant relief. Judge Story says' that circumstances of extreme necessity and distress of a party, though not accompanied by any direct restraint or duress, may so entirely overcome his free agency as to justify the court in set
In addition to this, plaintiff knew Spelbrink was married and that his wife had dower rights in the land, and, notwithstanding that knowledge, it accepted the contract of sale signed by him alone, she not joining, with an agreement that he would convey the property by general warranty deed, clear of all encumbrances, etc., and for which plaintiff agreed to pay him $20',000. Now, by what authority has this or any other court the right or power to change the contract and compel him to convey the land to the vendee for the sum of $18,-910.40 instead of said $20,000? None whatever. If plaintiff insists upon the strict performance of its contract, let it tender the full contract price, due according to the terms thereof, and pray for a decree of court commanding the vendor to convey the land to it by general warranty deed, with the covenants of warranty called for by the contract, and thereby perform what it agreed to in toto and at the same time receive every jot and -tittle called for by its contract. By thus accepting such a deed, the plaintiff would become the owner in fee of the land, absolutely secure in its possession and enjoyment, for all time to come, without perchance the wife should happen to survive her husband, and demand her dower in the premises; and, in that event, should
This would give a cause of action against his estate, and, as soon as the eviction occurred, the vendee could institute proceedings against his estate and recover the value of her dower interest, computed according to the mortuary tables adopted by the Legislature. [Rumsey v. Otis, 133 Mo. 85; Metcalf v. Smith, 40 Mo. 572.]
But if the plaintiff does not choose to accept Spelbrink’s deed alone with the covenants called for by the contract, and take possession thereunder and hold the premises until evicted by his. widow, then he has the perfect right to repudiate the entire contract at this time and sue him for a breach of the contract and recover compensatory damages. [Burk v. Serrill, 80 Pa. St. 413.]
And as was said by Lord Eldon in Emery v. Wase, 8 Ves. Ch. 515, and quoted with approval by Chief Justice Gibson, in Clark v. Seirer, 7 Watts 112, “If, in disregard of public policy, a purchaser has taken a covenant for a wife’s title, let him take his chance of damages for it; a chancellor should not move a finger for him; and if he has taken no covenant, is it not clear that he consented to take the husband’s conveyance, without even a chance of damages? But independent of positive demerit, it must be inferred, on the principles of Dyer v. Hargrave, that he estimated the difficulty of procuring her compliance, and bid so much less.”
It would be an almost endless task, as well as a supererogation of time and labor, to undertake to cite all the cases in this country which refer with approval to the remarks of Chief Justice Gibson in Clark v. Seirer, supra. The principles announced therein are so firmly and universally settled on both sides of the
Such a contract, whenever it attempts to take the wife’s right of dower under such circumstances, is not only against public policy and good morals, but is equally offensive to humanity — is oppressive and intolerable, and a court of chancery should do nothing whatever to extricate him from the unenviable position in which he has voluntarily placed himself in striving to grasp that which does not belong to him, nor which he is entitled^ to under his contract. All he is entitled to is compensatory damages against the husband for a breach of the contract, and the specific enforcement of the same against him without the reduction or suspension of any part of the purchase money. A court of conscience under the circumstances and facts of this case should give to plaintiff the pound of flesh called for by the bond, but should see to it that not one drop of blood is shed, as a penalty for the breach hereof. [Clark v. Seirer, 7 Watts l. c. 112; Burk’s Appeal, 75 Pa. St. l. c. 146; Lucas v. Scott, 41 Ohio St. 636; Hanna v. Phillips, 1 Grant 254; Weller v. Weyand, 2 Grant 103.]
And this court has held that a specific performance will not be decreed in case of fraud, mistake or of hard' and unconscionable bargains, or where the decree would produce injustice; and, generally, not in any case where such decree would be inequitable under all the circumstances. [Veth v. Gierth, 92 Mo. 97; Southworth v. Hopkins, 11 Mo. 331; Pomeroy v. Fullerton, 131 Mo. 581.]
This court has gone so far as to hold that, in a case where it was. sought to specifically enforce a contract against husband and wife for the sale of real estate belonging to her, and signed by both of them, it was not only non-enforceable as to both of them, but also expressly held that a court of equity had no power or authority to enter judgment against him for part of
Nor are the suggestions heretofore made against the claim of plaintiff to have the payment of a portion of the purchase money suspended during the life of the wife the only valid reasons why such contention is untenable, but there is another equally strong and potent reason for denying such claim, and that is this: there is no possible way known to the law by which the value of the wife’s inchoate right of dower can be ascertained. The plaintiff contends and was permitted to prove that value by the Carlisle Table of Mortality. This ruling of the court is attempted to be justified by an act of the Legislature, approved April 8th, 1905. [Laws 1905, p. 139.] This act refers in express terms to estate “for life, or by the curtesy or in dower.” This act is dealing with definite, known and ascertained estates, well known to the law, and it does not purport to, nor intend to include within its operations inchoate rights of- dower, which is a vague, shadowy expectancy, without substance and intangible, and may never ripen into an estate in dower within the meaning of the act. To
And as said by the Supreme Court of Illinois, “If Cowan [Spelbrink] were dead and his wife surviving, mortality tables might be used as the best evidence of determining the value of her dower, but as they are both living, the chancellor would have to base his estimate on the supposition that she was to he the survivor, and if that could be done in any case, there is no evidence whatever in this record upon which even a surmise could be founded. It would be carrying the use of mortality tables to an unwarranted extent to apply them in such a case to determine substantial rights.” [Cowan v. Kane, 211 Ill. l. c. 576.]
In the light of these observations, let us apply the mortality tables to this case, and see what a hardship and great injustice might be imposed upon the defendant. Suppose the day after the affirmance, the wife of defendant should die — in that event plaintiff would never be called upon to pay the $1,089.60 deducted by the trial court as the value of her inchoate right from the purchase price of the land; and the same would be true-, however long they both might live if she should happen to die first; and, if upon the other hand, they both should live for one or many years, and she should survive her husband, then plaintiffs would be compelled
Such a decree would be not only unjust, inequitable and unconscionable, but would border closely upon the line of confiscation of private property. A court of chancery should turn a deaf ear to so unjust and inequitable an appeal and raise not a finger in aid of such a monstrous proposition.
But it is insisted by plaintiff that the case of Kilpatrick v. Wiley, 197 Mo. l. c. 172, sustains the action of the trial court in deducting the $1,089.60 from the purchase money. As an abstract proposition of law that is true; but it will be noticed by reading that case that there was no such question in that appeal. No such issue was made by the pleadings, nor was any such point made in the briefs filed in the cause. It is per-' fectly apparent from reading the case as reported that brother Lamm, J., in reversing the judgment and remanding the cause for a new trial, was only stating in a general way the proper procedure in case certain facts should appear at the next trial. That part of the opinion was a general statement of the law upon spe
“There being no evidence on the condition of Lisle and Kilpatrick’s title, and no satisfactory evidence on the question of the rental value of the land from year to year, and no evidence relating to the payment of taxes and insurance, this cause is reversed and remanded to hear evidence on the questions of title, rental values and the payment of taxes and insurance. If the title be found marketable, a decree must be entered that plaintiffs convey the real estate in question, free from all existing liens and encumbrances, to defendants Wiley and Dungan by warranty.deed; or, in lieu thereof, that the. title be vested out of plaintiffs and into Wiley and Dungan. If plaintiffs be married and their wives, or either of them, refuse to join in a conveyance, then testimony should be heard on their ages to ascertain by tables the present worth of their dower interests and, in that event, the purchase price should be diminished thereby, provided Wiley and Dungan are willing to accept specific performance in that form with compensation for outstanding dower. ’ ’
It is thus seen that the expression was obiter, and has no binding force or effect as a precedent upon the eourt in this case.
Had the petition in this case charged and the evidence showed that the wife’s refusal to join him in the deed of conveyance was caused by the fraud of Spelbrink, and not from her own volition, then a different proposition would be presented, and the conclusions might have been different from those here reached.
Returning, however, to the question under consideration, we desire to state, that if plaintiff feels aggrieved and injured by the defendant’s breach of the contract, the courts of law are open to it, wherein it may prove and recover all compensatory damages sustained in consequence of such breach. Under the facts and circumstances of this case that is all plaintiff in
IV. The defendant next insists that the trial court erred in deducting the value of the inchoate right of dower from the purchase price of the land, for the reason that no such question is presented in the pleadings. An examination of the pleadings discloses the fact that the petition was drawn upon the theory of enforcing the contract against defendant irrespective of the wife’s interest in the land. No such question is presented, nor is any such relief prayed for in the bill. It is, therefore, clear the evidence as to the value of the wife’s inchoate right of dower was foreign to the issues presented, and the decree in that regard is not responsive to or based upon the pleadings. This court has held that under similar pleadings the plaintiff was not entitled under the prayer for general relief to have'even a money judgment entered for the damages sustained in consequence of a breach of the contract. [Rush v. Brown, 101 Mo. 586; Yost v. Devault, 9 Iowa l. c. 64.]
V. The defendant contends that the contract in question is null and void, for the reason that the plaintiff was the agent of both the vendor and the vendee in the sale of the land. While it is true plaintiff represented both parties in the transaction, yet all the evidence in the case discloses the fact that the defendant, knew that fact. The very contract of sale signed by defendant states that the option was given to plaintiff as “agent,” thereby indicating that it was acting for another. In addition to this, all the oral evidence conclusively shows that plaintiff fully disclosed to defendant in advance of all negotiations regarding the sale that he was acting for the Brothers of Mary. And the fact he had such knowledge is made clear by the following quotation from his letter to plaintiff, in which he returned, the $50 check mentioned in evidence, to-wit: “On examination of the agreement you gave me is not
The mere fact that plaintiff paid defendant the $50 for the option was sufficient evidence to show him that it was also acting for the other party as “agent,” as stated in the contract.
The law is well settled in this State, as well as elsewhere, that where the dual agency is disclosed to the principals, the agent may act for both, and the agency cannot be questioned. [McElroy v. Maxwell, 101 Mo. l. c. 308; Alexander v. University, 57 Ind. 466; Rowe v. Stevens, 53 N. Y. 621; Scribner v. Collar, 40 Mich. 375; Morgan v. Elford, L. R. 4. Ch. Div. 352.]
We must, therefore, rule this proposition against defendant’s contention.
YI. There are some other subordinate questions presented by the record but they are necessarily disposed of by the rulings above.
We are, therefore, of the opinion that the judgment should be reversed and the cause remanded for a new trial, in conformity to the views herein expressed, and it is so ordered.
Dissenting Opinion
IN BANC.
DISSENTING OPINION.
— I agree to paragraphs one, two and five of the opinion by my brother Woodson, but not with his disposition of the question of dower in other paragraphs, nor with the reasoning upon which it is
The .question is: May a vendee have specific performance of a contract for the conveyance of real estate, with abatement of price pro tanto for an outstanding inchoate dower right?
The proposition is of sharp concern to the business interests' of the State, coming home to the fireside of the citizen and seeks a consideration commensurate, in fullness of depth and breadth, with its own gravity. The case at bar has the vantage ground of being a “seed-case,” hence this court may be persuaded (but is unbound) by precedent. Being free to take the view deemed soundest, it cannot be amiss to ponder well the course we set out on. A choice at the forks of the road is one thing — to. tread back on a journey is quite another.
It is true the conclusion reached runs contrary to the directions sent down in Kilpatrick v. Wiley, 197 Mo. l. c. 172-3. In that case specific performance was decreed in favor of the purchasers, Wiley and Dungan (defendants), and, in reversing and remanding that case, the chancellor, nisi, was admonished as follows: “If plaintiffs be married and their wives, or either of them, refuse to join in a conveyance, then testimony should be heard on their ages to ascertain by tables the present worth of their dower interests and, in that event, the purchase price should be diminished thereby, provided Wiley and Dungan are willing to accept specific performance in that form with compensation for outstanding dower.” However, the doctrine was not discussed in the briefs in that case, nor by the writer, but the rule was laid down bare and bald as one announcing recognized and well-grounded equity under a prayer for general relief, on the theory that in matter of equitable cognizance the chancellor should not halt
It is not my understanding that it is an altogether open question, nisi; for in some circuit courts in Missouri, within my experience and observation at the bar, it has been the-rule to enforce contracts for-the sale and conveyance of real estate in favor of the vendee with compensation to him for outstanding dower rights, if he elect to take relief in that form, and if that rule is to be condemned it should be after we have gravely weighed the matter pro and con.
It has been said by some text-writers and held in some jurisdictions, that the question whether the vendee •knew the vendor was married at the time he contracted is a vital one in settling relief. To my mind it is not clear that it should be taken as vital, and, in a line of well-considered cases, that element is ignored. But in determining the rights of a vendee under such a contract, there ought to be no difference of opinion on the fact, so long as the fact is at hand to be got at. Attending to that fact, in my brother’s statement of the case it is set down fairly that the seller testified he told the buyer at the time of signing the contract that he signed it ‘ ‘ subject to the approval of his wife. ’ ’ By inference-, if the evidence be believed, this brought notice home to the vendee that the vendor was “under coverture” — we use the phrase advisedly as apposite to the present legal status of the husband. It is also set down in the statement fairly that the vendee in rebuttal put in evidence tending to contradict the vendor’s in that behalf. Now, with the fact (at best) so put in dubio, by inadvertence it is assumed that the vendee knew the vendor was married at the contract time. For instance, in paragraph three is this: ‘ ‘ The evidence in this case discloses the
With the oral evidence in this fix, the improbability of plaintiff’s making the remark relating to the wife at the time of signing the- contract, shown aliunde, should be put in the scale. Por instance: In the first place, plaintiff corporation was a business concern. Its officers were seasoned and live business men and if such unusual remark had been seriously made, as defendant contends was made, it is highly unlikely they would have closed so important a transaction for their foreign clients with so singular and challenging a condition subsequent sought to be tacked on by parol, without either requiring defendant to settle the question whether his wife would come on or allow him to go on, or requiring her signature; then and there. Here, if defendant is to be credited, were two minds meeting in a contract, and yet a third mind is projected by suggestion into the affair and then calmly (but not wisely) ignored by the suggestor, though by that lapse of prudence and omission of connubial fealty he laid himself wide open to be mulcted in damages if his wife held out at the end. In the second place, if defendant felt (as he would have us believe now) that it was his duty to consult his wife, or felt a call to advertise to plaintiff that his wife had
In view of the foregoing, while, as said, I do not •deem the vendee’s knowledge of the vendor’s coverture a turning or vital matter, yet the case ought to proceed on the theory there was no such knowledge at the contract’s birth.
With this clearing away of underbrush, we come into the open and reach the main question.
I. The consideration of that question may be begun by reminding ourselves of the general equitable rules pertaining to specific performance. These rules assort themselves into questions of mere discretion and questions of right or power. It may be said that specific performance is somewhat of grace, i. e., the chancellor is entitled to exercise a discretion, he must seek equity and -do it — not inequity — and, hence, specific performance will not go as of course and as a mere hard and fast matter of absolute right. However, as pointed out in Kirkpatrick v. Pease, 202 Mo. l. c. 493-4: *‘ Discretion does not mean caprice. A discretion meas-
In short, it may be said that those fine rules of personal honor obtaining between man and man, requiring one man to keep his word with another, but accord with Justinian’s golden idea of equity, viz., that every man should render to another his due.
Speaking of specific performance, Story says [2 Story Eq. Juris. (13 Ed.), sec. 779]: “The general rule (for it is not universal), in such cases, is, that the purchaser, if he chooses, is entitled to have the contract specifically performed as 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.”
The general rule so formulated has been adopted and uniformly enforced in this State. Thus.: In Luck
The case may proceed, then, with these two fundamental propositions assumed as solid, viz.:
(a) A purchaser of real estate under a contract such as here, that is, an honest one, a fair one, free from covin, overreaching, or misuse of trust relation — supported by a valid consideration, definite in term and not obnoxious to the Statute of Frauds — is entitled as of right to performance. The contracting parties write their own law in their contract. Courts sit to enforce the law. Hence, they sit to enforce contracts — not abrogate them. [Evans v. Evans, 196 Mo. l. c. 23.]
(b) Being entitled to performance and defendant refusing to perform, such purchaser is entitled under clear equity to elect to accept that which was in the power of the vendor to give and further entitled to compensation for so much as the vendor had not in his power to give (in this case the inchoate dower right of his wife) unless there is something, singular about the inchoate right of dower taking it out of the general rule and putting up the bars to full equitable relief, to-wit, performance in kind so far as possible with compensation for the part not performed.
In the evolution of the case the question then has come to be: Is there such peculiarity about the inchoate right of dower as strips the chancellor of power, or makes it inequitable to coerce performance on the husband’s part by decreeing title out of him (if he refuse to convey) with compensation by proportionate abatement of the contract price?
It may at the outset be well to consider some of the cases leaned on as supporting a contrary ; lew. In ■some of them, notably from the Supreme Court of New Jersey, a distinction is made between a case where an element of fraud enters into the wife’s refusal to join in the deed, and one in which fraud is absent. In case of fraud it is held by that court, full relief may go. [Reilly v. Smith, 25 N. J. Eq. l. c. 159, and cases cited; Flaharty v. Blake, 10 Atl. 158.] May it not be justly said of this theory that while fraud is a matter of ancient and modern equity cognizance, yet courts of law have jurisdiction in cases of fraud as well as courts of equity? That one need not as a rule go into equity to cure fraud? That specific performance, a distinct and independent ground of equitable cognizance, ought to require no aid from doctrines relating to fraud? That it stands, to use a homely expression, on its own legs and may go because of the contract itself — absent fraud or present fraud in the vendor? The equity of specific performance in favor of a vendee is not administered as a punishment for fraud in the vendor, but because of what is due the vendee, and is it not inconceivable that a vendor who refuses to perform through stubbornness-through loose ideas of the binding sacredness of a contract or (peradventure) because of the prick and itch of gain in a market rise — is any less amenable to the equitable rule because he does not also inject a darker element of fraud into his refusal?
In 1874 the Court of Appeals of New York decided Sternberger v. McGovern, 56 N. Y. 12. On that learned bench at that time were seven judges. Grover, J., wrote the opinion, and what he said has been quoted in support of the notion that the purchase price should
In a later New York case in which all seven judges concurred, Bostwick v. Beach, 103 N. Y. 414, the dower right of a widow was involved in a case of specific performance and that court found no difficulty with the matter, disposing of it in this way: “As to the dower right of the widow, a more complicated question is presented. If the purchaser should elect to carry out his purchase and take title to the land, subject to that dower right, he would clearly be entitled to do- so, and in that event would be entitled to an abatement from the contract price, equal to the gross cash value of the' right of dower. If a seller of land is not able to comply fully with the contract, either in respect of the quantity of the land or the extent of the estate, the court will, at the election of the buyer, decree specific.
In view of the foregoing later utterance of the , highest court in New York we ought not without hesitation and caution to either base our own determination of the matter upon, or fortify it by, the dictum of Grover, J., in (the Sternberger case.
It may be admitted that the Supreme Courts of Ohio, North Carolina, Illinois and Pennslyvania sustain the doctrine announced by my brother. The Pennsylvania oases (Clark v. Seirer, 7 Watts l. c. 110-112, and Riesz’s Appeal, 73 Pa. St. l. c. 490), quoted from in extenso by him, bear the hall-mark of oracles of the law — Gibson and Sharswood. What is said by Chief Justice Gibson in Clark v. Seirer, supra, is written by a trenchant and characteristic pen, and what is said by Sharswood bears the ear-marks of his elegant and ripe learning, but it is modestly submitted with confidence ■that the gist of what was said by Gibson, O. J., is in the main leveled at using the power of a court of equity to coerce a conveyance from the wife by using contempt process against the husband whereby her affections may be played upon and her will broken. No one at this late day in the light of modem equity jurispru
The reasons given by Shabswood in Riesz’s Appeal, supra, have been included in a note to the text of Pomeroy’s Spec. Performance of Contracts (2 Ed.), top pages 526-7. Referring to the Pennsylvania rule, which is also the rule in some other states as hereinbefore pointed out, Pomeroy sharply and successfully challenged the reasoning of Shabswood, J., and it will not be space misapplied to quote and adopt with ap-proval what he has to say, viz.: ,
“It seems to be settled in some of the States as a* general rule, whether the vendee knew of the wife’s dower interest or not, that when a contract is made with the husband, and the wife refuses to release her dower, the vendee cannot have an abatement from the price if he obtains a specific performance; he must either abandon the contract, or obtain a conveyance of the husband’s estate, and sue him at law for a breach of the contract, or else content himself with the legal remedy alone. The reasoning quoted in the note, by which this rule is supported, is certainly very unsatisfactory, and the argument by which a judge sitting in equity justifies a party in the breach of his contract, and throws the shield of his decision over the defaulting party alone, is in striking contrast with the utterances of those equity, judges who have built up the system and developed its doctrines from the eternal principles of right and justice. In fact, all the grounds given by the learned judge [Shabswood] against awarding compensation are utterly untenable. The argument that the court cannot make a new contract for the parties, would apply with exactly the same force
Our author gives the approval of his strong and discriminating pen to the right of specific performance on behalf of the vendee with compensation for an outstanding inchoate dower right, but says that, on principle, the relief ought to be limited to those cases in which the vendee did not know the vendor was married at the contract time. [Pom. on Spc. Per. sec. 461]. Good reason abounds against this modification of the rule, but the question may be reserved, since the facts of this case bring it within the general doctrine asserted by the author.
"We come in the next 'paragraph to consider the state of the law on the main'question as deduced from as painstaking an investigation of the decisions in our sister states and the doctrine of text writers, as the writer has at his disposal or ability to make.
II. Waterman lays down the rule with Pomeroy’s qualification (Waterman on Specific Performance, sec. 511). He says: “As a rule, where a person contracts for the purchase of real estate, supposing that the vendor can give him a clear title, and the wife of the vendor refuses to join her husband in the conveyance, the vendee may, at his option, decline to- take a deed executed by the husband alone, and bring an action against him for breach of covenant; or the vendee may accept the deed as part performance and retain so much of the purchase money as shall be proportionate
The learned authors of the Am. and Eng. Ency. Law (2 Ed.), vol. 26, p. 83, say:
“Where a party has entered into a contract which he is only partially able to perform, he will not, as a rule, be permitted to plead his own incapacity in bar of all equitable relief, but performance of such portion as he is able to perform may be decreed, with pecuniary compensation for the residue, or an abatement of the purchase price as to that portion of the property which cannot be acquired. So where a husband has entered into a contract of sale, and his wife refuses to join in the deed for the extinguishment of her dower right, it has been held that performance by the husband may be decreed with compensation or abatement for the wife’s dower interest, or indemnity may be required against loss by the wife’s claim for dower.”
The rule in Massachusetts is to the effect that specific performance will be decreed with compensation ■ for an outstanding inchoate right of dower. [Park v. Johnson, 86 Mass. (4 Allen) 259; Woodbury v. Luddy, 96 Mass. (14 Allen) 1.] As already pointed out, these two cases were cited with approval by the Court of Appeals of New York in Bostwick v. Beach, supra, and hence met the concurrence of the New York court. In the Park case, Dewey, J., said: “As' to the objection that the court will not decree a specific, performance of the agreement so far as relates to the release of dower by the wife of the defendant, if the prayer of the bill is that the wife shall execute such release-, it would of course be denied, she not being
In the Woodbury case, involving outstanding dower, Hoar, J., said: ‘ The general rule undoubtedly is, that when a person can only partially perform a contract into which he has entered, he must respond in damages to the extent of the difference in value between that which the other party receives and that to which the contract entitled him. And this is found by taking the market value of what is delivered, and deducting it from the market value of the whole subject of the contract. [Wetherbee v. Bennett, 2 Allen 428.] But this rule is not universal; and, in the case of an incumbrance on an estate conveyed with covenants of warranty,' the more usual measure of damages for the breach of the covenant against incumbrances has been the market value of the incumbrance, where this was capable of an exact estimate. [Estabrook v. Hapgood, 10 Mass. 315.] But under the peculiar relation of the parties, we can have no doubt that the latter rule is the just one. The plaintiff seeks the aid of a court of equity to compel the specific performance of the defendant’s contract to convey land. The defendant is unable to make a perfect title; and the court, at the ■plaintiff’s election, will compel the conveyance of so
In Iowa the question came before the Supreme Court of that State in Troutman v. Gowing, 16 Ia. 415. The court, nisi, in granting specific performance decreed one-third of the purchase money to be retained by the vendee as representing the value of the dower right until the wife should join in the deed. This was held erroneous and the cause was reversed with directions to the lower court to ascertain the value of the wife’s interest either by a master or otherwise, so that in the light of testimony the court below should make the proper order to protect the rights of the respective litigants.
The question came- before that court again in Leach v. Forney, 21 Ia. 271 — Judge John F. Dillon then sitting. It was there held that: “When the wife of the vendor refuses to- join with her husband in the execution of sufficient deeds to enable him to perform on his part a contract for the conveyance of real estate, the vendee has the option of accepting performance by the husband to the extent of his liability, and the retention of so much of the purchase money as shall be proportionate to the utmost possible outstanding or contingent interest not conveyed, without interest; or to- refuse such partial title and have his damages for a breach of the covenant.”
In Zebley v. Sears, 38 Ia. l. c. 509, it is said: “It is also settled that, under a contract to convey real estate
In Townsend v. Blanchard, 117 Ia. 36, that court reviewed its former decisions and in commenting upon a contention made, said: “If the result of such holding was the making of a new contract for the parties, we would hesitate long before adopting it. But, as will be seen from a reading of the foregoing cases, this is not so. The contract, as made, is enforced in so far as it is possible; and courts do not permit defendants to take advantage of their own wrong. Purchasers are entitled to enforce their contracts in so far as possible, and at the same time have damages for non-performance of the entire contract.” The doctrine was again affirmed in Bradford v. Smith, 123 Ia. 41, and in Thompson v. Colby, 127 Ia. 234.
The question came before the Supreme Court of Wisconsin in Wright v. Young, 6 Wis. 127, and in disposing of it Cole, J., considered many cases, English, and American, including Clark v. Seirer, supra (refusing to follow its lead, p. 130), saying: “We therefore conclude that in the present case, the vendee can enforce a performance of the contract, and take such a title as the vendor can give, and have an abatement of the purchase money for the right of dower left outstanding. Some question has been made as to whether the value of this dower interest could be accurately calculated. There can be no difficulty, however, in ascertaining what this reversionary interest is worth. In Davis and Peck’s Mathematical Dictionary, and by Cyclopedia of Mathematical Science, pages 501 and 502, formulas are given by which the present .value of
Wright v. Young was cited and followed in Conrad v. Schwamb, 53 Wis. l. c. 378, and again in Docter v. Hellberg, 65 Wis. l. c. 423. We take it that Wright v. Young settled the question in Wisconsin and announces the doctrine in that jurisdiction.
The same doctrine has the support of the Supreme Court of Minnesota in Drake v. Barton, 18 Minn. 462 (467); and in Sanborn v. Nockin, 20 Minn. l. c. 186-7.
In some States, for example, in Maine, the equitable doctrine in hand has been grafted into the statutes. [Handy v. Rice, 57 Atl. 847.]
The rule in Massachusetts, Wisconsin, Iowa, Minnesota and New York is unreservedly adopted by the Supreme Court of Indiana and the Appellate Court of that State. [Wingate v. Hamilton, 7 Ind. 73; Hazelrig v. Hutson, 18 Ind. 481.] In the latter case the court, nisi, decreed the amount to be retained by the vendee • was the full sum to which the wife would have been entitled if her husband had been dead. On this ruling it was said: “There should have been an inquiry as to the respective ages of the said husband and wife, etc., and' the proper tables resorted to, to determine the question as to the amount which should be abated, and the correctness of the amount tendered, thereby determined. ’ ’
In Martin v. Merritt, 57 Ind. 34, the question was reagitated and that court cited a long list of its former cases commencing with Wilson v. Brumfield, 8 Blackf. 146, and held that its doctrine was sustained by the weight of authority elsewhere. [Page 40-1]. See, also, Maris v. Masters, 31 Ind. App. 235.
The same rule seems to obtain in Alabama. [Springle’s Heirs v. Shields, 17 Ala. 295.]
The importance of the question may possibly have justified pursuing the question so far. Such is the ingenuity of the human mind that a hard case may well be put against using life tables in computing the value of an inchoate dower right, but it is submitted that the same hard case can be put and used against any use of life tables as evidence! People do not live by a rule in mathematics. They die (and worms devour them) but not according to mathematical rule. Hence when a life table is used and the experience of mankind, derived from a close and wide observation in mortuary affairs, is thus made the aid and servant of judicial determination, the actual result may be wide of the mark, and register as a fact a thing that never would have happened. For example: A young widow has her dower commuted into- cash under the statutory table — h,er expectancy produces a large sum — it is hers to keep and hers to give — and yet she may die in the twinkling of an eye. So that, her dower estate commuted on a long
Finally, unless we hold that specific performance may be decreed in equity with compensation or indemnity for outstanding dower we put it within the reach of (nay, we invite) any vendor at his own whim in every instance to clap- the door of equity shut in the face of the vendee. To say the vendee shall take what the husband can give (which is less than he contracted to give) and yet pay the full purchase price for the whole title, amounts to no relief at all. The very statement of that proposition shows its inequity. He was entitled to a bird in hand — equity gives him one in the bush. He was entitled to bread — he gets- a stone. He was entitled to the whole estate — equity says to him, pay all and take part.
Granted that equity will not coerce the wife, granted that she is a ward of chancery — that is the delight of the law to protect her dower; yet, in decreeing specific performance against the husband with compensation for her outstanding right of dower, her wifely interests in his real estate are not abated by the tithe of one hair. They go to her in due time and season undiminished.
The decree, below should be affirmed.
