63 N.J. Eq. 454 | New York Court of Chancery | 1902
Four defences are set up:
First, that the wife was not aware that the contract covered
I think this defence entirely fails. Her husband was sued on the previous contract, which provided for liquidated damages, and was liable to have a judgment entered against him. He obtained the aid of competent and faithful counsel, and through that counsel sought a settlement of that suit. It appears that the wife visited that counsel with her husband; that she took part in the preliminary negotiations; that the contract here sought to be enforced was prepared by that counsel, and that the contents were fully made known to her by him, and that she signed and acknowledged it, according to-the statute, before that counsel as master. It is quite impossible, under these circumstances, to believe that she was unaware that the additional lot was included in the present contract.
The next defence set up is want of any consideration paid to her. The consideration for entering into the contract was the $200 paid on the previous contract and the discontinuance of the suit pending on the previous contract, which called for liquidated damages to the extent of $350, besides the costs.
No consideration was paid directly to the wife, but she had a perfect right to stipulate with the husband, if she chose so to do, that a certain part of the final consideration-money of several thousand dollars to be received by him should be given to her; and the inference from all the circumstances would be that she had stipulated for some such consideration if she required it. Moreover, as a wife, she was interested in the welfare-of her husband. Presumably she would suffer by his being condemned in damages and costs for the non-performance of the first contract. Further, no pecuniary consideration is necessary 'in order to support such a contract. This defence fails.
The third defence is that the consideration agreed to be paid is inadequate. The property subject to the contract is what is knowp as tenement-house property, and some testimony was given as to its rental value. But no satisfactory evidence was given as to the cost of repairs, maintenance, taxes and the like.
, The fourth defence, and the one mainly relied upon, and which raises the only serious question in the case, is whether a married woman can be compelled by the court of chancery to specifically perform a contract, entered into with her husband and duly acknowledged by her as a married woman, to-convey lands in which she has a dower interest.
The question, so far as I know, has never been squarely presented and decided in New Jersey. The subject was dealt with elaborately by Vice-Chancellor Stevens, in the case of Corby v. Drew, 10 Dick. Ch. Rep. 387. The law, as left by him, may be stated in this wise: The three statutes then in force relating to the rights and obligations of married women as to their interest in land, taken together, provided that a married woman had the right to contract concerning her property, including land, the same as if she were feme sole, subject, however, to-the statutory exception that she could not convey land without her husband joining with her therein, except in certain cases-stated; and further, that she could not convey land without .acknowledging the conveyance before a proper officer in the-mode prescribed in the statute.
The result was that Vice-Chancellor Stevens held that where a married woman had entered into such a contract with her husband, which contract, however, was not acknowledged by her before a proper officer separate and apart from her husband,, she could not be compelled to specifically perform that contract.
The precise question here presented was not before Vice-Chancellor Stevens, because, as I have said, the married woman in-that case had not acknowledged the contract separate and apart from her husband before a proper acknowledging officer.
Since the decision in Corby v. Drew the “Act concerning conveyances” has been revised, as found in P. L. of 1898 p. 670.
Section 39 (at p. 685) relates to the rights of a feme covert in land, and is in the following language:
“No estate or interest of a feme covert in any lands, tenements or hereditaments, lying and being in this state, shall hereafter pass by her •deed or conveyance, without a previous acknowledgment made by her on .a private examination, apart from her husband, before one of the officers mentioned in the twenty-second, twenty-third and twenty-fourth sections of this act, as the case may be, that she signed, sealed and delivered the same as her voluntary act and deed, freely, without any fear, threats, or •compulsion of her husband, and a certificate thereof written on, or under, ■or annexed to the said deed or conveyance, and signed by the officer before whom it was made; and further, every deed or conveyance, heretofore or hereafter so executed and acknowledged, by a feme covert, ■ and certified as aforesaid, shall release and bar her right of dower, and every deed or instrument of the nature or description set forth in the twenty-first section of this act, heretofore or hereafter executed hy her and so aelmowl■edged and certified as aforesaid, shall he good and effectual to convey or ■affect the lands, tenements or hereditaments, or other property, or her interest therein, thereby intended to be conveyed or affected; provided, that this clause shall not be construed to enable any feme covert under the age of twenty-one years to convey or affect her lands, tenements or hereditaments, or other property, or any right of dower, interest or estate ■therein.” /
Tbe language of this statute, it is seen, is broader than that previously regulating that subject, which is section 9 of the “Act ■concerning conveyances.” Gen. Stat. 1895 p. 854. The additional words are these:
“And every deed or instrument of the nature or description set forth in the twenty-first section of this act, heretofore or hereafter executed by her and so acknowledged and certified as aforesaid, shall be good and effectual to convey or affect the lands, tenements or hereditaments or other property, or her interest therein, thereby intended to be conveyed or affected.”
Among the instruments mentioned in the twenty-first section, ■so referred to, is “agreements for sale.”
If any doubt existed under the law as it stood at the time Corby v. Drew was decided as to the effect of a contract to con
“shall be good and effectual to convey or affect the lands, tenements or hereditaments, or other property, or her interest therein, thereby intended to be conveyed or affected.”
Now, a familiar way to “afEect” the interest of a person in land is to contract to convey it, and the only mode in which such a contract can be made “good and effectual” is to compel its specific performance by a decree of this court.
But it is argued that this court is asked to compel a married woman to execute and acknowledge a deed, and declare before' the acknowledging officer that she signed, sealed and delivered the 'same as her voluntary act and deed, freely, without any fear, threats or compulsion of her husband. There is nothing, in this objection. As pointed out in Fee v. Sharkey, 14. Dick. Ch. Rep. 284 (at p. 292); S. C. on appeal, 15 Dick. Ch. Rep.. 446, the decree of this court executes itself.
By her contract, under the statute of 1898, the defendant Mrs. Curtis came under an obligation, enforceable in a court of equity,, to join her husband in a conveyance of this land. Her obligation does not differ in character, though it does in origin, from; that of the married women defendants in the ease of Fee v. Sharkey; and if she executes the deed without acknowledging' it, I am of the opinion that the title will be perfectly good, because made in obedience to a decree of this court.
And here I feel constrained to remark that I think much doubt may be suggested as to the accuracy of the interpretation of the statutory requisition applicable to the execution of conveyances by married women which Mr. Eisk seems to have adopted in refusing to certify Mrs. Curtis’ acknowledgment to-the deed prepared by him to be given under the contract now sought to be enforced, because she would not acknowledge that she executed it “freely ” though disavowing any fear, compul
I also call attention to the former condition of the law in England on this subject, by reference to a collection of the authorities in a learned note to an article on the subject of “Specific Performance of Contracts” in 1^1 Am. Law Beg. {N. S.) 259 {May, 1902).
The simple common sense of the thing is that the wife has once acknowledged, in the manner required by law, an instrument in writing releasing her dower in equity in the land involved in this suit, and there is no necessity, in order to validate the title, for her making that acknowledgment a second time.
The contract under consideration is fair in all its parts. It bound both parties to it, and I see no reason why it should not be enforced.
I will advise a decree for complainants, with costs to be paid by the defendants and deducted from the purchase-price.
The decree may contain a provision that the conveyance shall be delivered and the purchase-money paid and other matters liable to lead to dispute be adjusted by the parties in the presence and under the supervision of one of the masters of this court, if the parties cannot carry it out privately.