7 Watts 107 | Pa. | 1838
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 process of contempt against the husband, is to extort a conveyance from her affection or fear. It would be a mockery to tell her she is free to act at her pleasure, while the machinery of a court is put in motion to constrain her by the strongest sympathies of her nature. The disposition evinced by chancellors, in other cases, to set married women free from restraints imposed for their protection, and to hold them to the consequences of their acts performed notoriously under the influence or coercion of their husbands, is one of those things in respect to which, the superior wisdom and fitness of the common law is vindicated by experience. I would not, were it practicable to avoid it, expose the husband to imprisonment for a breach of the contract, even by an action ; a fear of which, doubtless, serves to loosen the wife’s hold on the property. But it is clear the contract will not be decreed on terms that would jeopard his liberty. On the other hand, if the vendee consent to take such title as the husband can give him, it is agreed the coverture will not stand in the way of performance. But thus far entitling himself to it by performance of his own part, he must professedly go for no more. If he tender the price, demanding an entire execution of the contract, it may be rejected for having been tendered on a condition he is not entitled to enforce.
Whether he may have an abatement of the price in compensation of the risk of dower left outstanding, is a question of the first impression ; for the practice of giving specific execution without the wife’s concurrence, is but lately sanctioned; yet there are analogies which seem to show he may not. The doctrine of compensation has doubtless been carried very far; so far indeed, as to compel the execution of a contract which the party had never made nor dreamt of. This was considered, in Drewe v. Hanson, 6 Ves. 675, to have been done, in the subdued tone of Lord Eldon, by “ the exercise of a strong power;” in plain terms, an arbitrary one. The cases on this head have been those of mistaken description affecting a part of the estate or title; and there is an admitted difference, in respect to it, betwixt a vendor and a vendee; for the latter may insist on having the part to which title can be made, though the former could not have compelled him to accept it; Attorney General v. Day, 1 Ves. 224, sometimes misquoted as the Attorney General v. Gowen. On what, then, can this difference depend, but on the waiver of the vendee, who may forego something to which he is entitled, and accept less than what he is entitled to by the contract. The difficulty is to understand how he forgoes any thing when he accepts a part and exacts an equivalent for the rest. We attach to the word
The failure to furnish the seed wheat was immaterial. It was to have been sown for the vendee’s own use, and he might dispense with it. But he insisted on entire performance as the condition of his tender; and on that condition, it was no tender at all. He de
Judgment reversed.