7 Utah 519 | Utah | 1891
This is a suit in equity to enforce the specific performance of the following contract: “Salt Lake, Utah, September 13, 1887. Keceived of Lewis P. Kelsey and J. K. Gillespie the sum of fifty dollars, being part consideration of the purchase price, to-wit, $2,750.00, at' which the undersigned agrees and contracts to sell, and by good and sufficient warranty deed convey, free of all liens, to said Kelsey & Gillespie, the following described lot of ground, to-wit: The east thirty (30) acres of the south half of the southwest quarter of section three (3), township one (1) south, of range one (1) west of Salt Lake meridian. Said purchaser to have after this date thirty (30) days for the examination of the title of said premises, and, in case said title is adversely reported on by the attorneys of the said purchasers, then the said part consideration hereby receipted shall be at once returned to said purchasers; but if said title is approved I hereby ■contract and agree to and with said Kelsey & Gillespie that I will at once, on the payment of said balance of agreed purchase money, to-wit, $2,700.00, duly execute, sign and acknowledge a full and perfect warranty deed conveying to said purchasers the entire title to said
The complaint alleges a tender of the money, although an abstract was not furnished, a demand for a deed, and the failure to make same. The answer is a specific denial of the allegations of the complaint. A trial was had by the court, findings of fact, and a judgment that the complaint be dismissed, from which judgment the plaintiffs appeal. The testimony is all in the record, and we do not deem it important to review the findings of fact made by the trial court. The claim of the appellants is that the evidence does not justify the judgment. It shows that the contract was signed and delivered on the 13th day of September, 1887; that the defendants failed altogether to furnish an abstract; that at no time within the thirty days did the plaintiffs offer to pay the purchase money and demand a deed, but on the thirty-first day, October 14, 1887, defendant Crowther went to the office of plaintiffs, and told Kelsey, one of the plaintiffs, that he did not come round yesterday, and that his time was up, and Kelsey said that he had forgotten it, and Crowther further told him that he had forfeited his $50; but he further said — but this Kelsey' denies — he offered him back the $50. This occurred on the street in front of the office of plaintiffs, Crowther being in his buggy with his wife; and Kelsey went immediately into his office, and brought a bag with money in it, and said, “ Here is your money,” but Crowther drove off, and refused to wait. Kelsey says the amount of money required was in the bag. Kelsey further says that the offer of the money was on the condition that Crowther’s wife would also sign the deed. We think this judgment must be affirmed.
1. The contract is an option. The plaintiffs had thirty days in which to tender the money and demand a deed. By the terms of the contract they did not have thirty-one
2. The plaintiff Kelsey says that he offered the money on the condition that the wife of the defendant Crowther would sign the deed. A husband cannot contract away his wife’s right of dower. A court of equity has no power on the husband’s contract to compel a wife to relinquish her dower rights. Therefore the offer of the money was upon a condition that could not be complied with, and that was not obligatory upon the defendant, and that a court of equity could not enforce, and was no offer at all. 3 Pom. Eq. Jur. § 1400 et seq. We see no Reason for the reversal of this judgment. It is therefore affirmed.
