206 N.W. 351 | Mich. | 1925
This is an appeal by defendants from a decree granting plaintiff specific performance of an option to purchase land. Defendant August Kannowski owns 160 acres of land, less a schoolhouse site, in Alpena county. Defendant Maria Kannowski is his wife, and has an inchoate right of dower in the land. August Kannowski lives in Alpena, and is a man of considerable business experience and Maria Kannowski lives in the city of Detroit. They have been living apart for about 15 years. April 18, 1924, in consideration of $25, August Kannowski signed an option giving Eota P. Smith and his assigns right to purchase the land, within five months, for the sum of $5,000. Mr. Kannowski mailed the option to his wife and she signed and mailed it back and he delivered it to Mr. Smith. May 16, 1924, Mr. Smith assigned the option to plaintiff. In August, 1924, plaintiff gave notice of election to purchase in accordance with the option and September 11, 1924, Mr. Kannowski, in writing, acknowledged receipt of the notice. No notice of acceptance was sent to Mrs. Kannowski. An abstract of title was procured by Mr. Kannowski and delivered to Mr. Smith and to perfect the title an unrecorded deed from the State to Mr. Kannowski was placed of record. November 6, 1924, tender of $5,000 was made to Mr. Kannowski with request to execute a deed, and Mr. Kannowski rejected the tender and refused to execute the deed. Thereupon the bill herein was filed, the $5,000 paid into court, proofs taken in open court and decree for specific performance granted.
The farm is cut-over land, and mainly in the rough and its value is in limestone deposits. Mr. Kannowski claims the price fixed is too low, although he set *212 the figure, but says he did so, upon the assurance that no higher price had been offered or would be offered for neighboring land, and this he later found to be untrue. Mr. Smith denies making any such statement. Having fixed the price himself, at a figure far beyond what the property was worth, except to one having use for the limestone, we are not impressed with the claim that he was led to do so by the assurance that his neighbors had not been and would not be offered more.
As a sidelight, and somewhat illuminating, it was shown that Mr. Kannowski sued the township, in which the land is situated, in March, 1920, to recover taxes paid under protest, because the valuation of the land at $2,400 was excessive. That suit was never tried.
Mr. Kannowski also claims he had an arrangement with his wife to pay her $100 on each lot he owned in the city of Alpena, if he sold and she joined him in deeding, and when he sent her the option he intentionally led her to believe, it related to one of the city lots. Mrs. Kannowski claims she, cannot read English and she believed, when she signed the option, that it was a paper relating to a city lot. Mr. Kannowski cannot invoke, his want of fairness with his wife, and Mrs. Kannowski's mistake, if any, was not the fault of or known to Smith, and she cannot set up her heedlessness.
There is some discrepancy between the testimony of Mr. Kannowski and that of his wife. Mr. Kannowski says he sent a letter, written in German, to his wife with the option asking her to sign the paper for him, and when he got the money he would give her $100. Mrs. Kannowski says there was no letter sent with the option contract, and without waiting for her daughter to come home and read it to her she signed and mailed it back, thinking it related to one *213 of the city lots. Mrs. Kannowski's carelessness does not excuse her from performance. She certainly did not rely upon any confidence in her husband for they lived apart, and without direct communication, for about 15 years.
We are asked to deny specific performance, because the wife signed under a misapprehension of the purport of the paper. This would leave the rights of the plaintiff, as to the wife, wholly within the power of Mrs. Kannowski to destroy for she is the only one with knowledge of her thought when she signed the paper. Without holding that in no ease will we accept such a claim, we do hold we are not called upon to do so in this instance. No hardship exists and no overreaching or sharp practice by Mr. Smith led her to sign. Even if we should hold the wife may be relieved from performance it would not help August Kannowski for he would still have to perform, and the present worth of the inchoate right of dower of the wife would be deducted from the purchase price. Walker v. Kelly,
Was Maria Kannowski entitled to notice of acceptance of the option? She had but an inchoate right of dower, which was nothing she could sell apart from joining with her husband. She agreed to join with him in a conveyance, if one was made, and her agreement was one, to make his option inclusive of her rights, and the option was operative upon notice of acceptance given Mr. Kannowski. Mrs. Kannowski could give no option with respect to her inchoate right of dower to Mr. Smith except in connection with her husband's agreement and the necessary *214 relation arising but of the one option, signed by the husband and wife, gave rise to, a binding agreement upon notice of acceptance to the husband alone, he being owner, and she agreeing to bar her dower by joining with him if his option merged into a contract of purchase and sale by acceptance.
The following testimony of August Kannowski discloses the reason for wanting to repudiate the option:
"Q. When you got that notice on September 11th what, if anything, did you do to impart that information to your wife?
"A. No.
"Q. She never knew anything about it?
"A. No, sir, she never knew anything about it. My children came back from Detroit on a visit and they said she wouldn't sign it. One of the brothers in Alpena and one in Rogers City — and they came to visit me. And my wife I think found out what the rest of the people got — one man got for one forty $3,000. My children got crazy. They told my wife what a mistake I made; so she wouldn't sign it. She found out first that the land was sold; then she wouldn't do it."
We think defendant August Kannowski hopes to get more for the land if not held to the option and that Maria Kannowski is willing. The option was valid, the price for the land entirely adequate, the acceptance sufficient and defendants must perform.
The decree entered in the circuit is affirmed, with costs to plaintiff.
McDONALD, C.J., and CLARK, BIRD, SHARPE, MOORE, STEERE, and FELLOWS, JJ., concurred. *215
