118 P. 192 | Or. | 1911
Lead Opinion
Opinion by
Assuming, without deciding, that the receipt given by Jackson was such a memorandum of the agreement as fulfills the requirements of the statute of frauds, the important question is whether plaintiff is entitled to the specific performance of it in this suit, under the facts disclosed. The court adjudged the value of Lucinda C. Jackson’s interest to be $160, and that Maria Jackson’s interest to be of the possible value of $1,420; and also
It must be conceded that the value of Maria’s inchoate dower interest, which is a contingent life estate in one-half of the land, cannot possibly be equal to one-half of the value of the property. By any theory of the case, Jackson is entitled to the present cash value of his interest, which the complaint admits is $2,200. However, the decree of the lower court gives relief to the plaintiff very different from that prayed for or contemplated by the contract, and it is not likely that plaintiff would now consent to it, if it were not for the possibility that the decree will coerce the wife to join in a deed to him, as the court cannot give him a title free from the dower estate.
According to Giauque & McClure’s Present Value Tables, the value of Lucinda C. Jackson’s interest at the time of the decree, if her dower became consummate subsequent to May 18, 1893, was $311.49; and if defendant were now dead, and the dower of Maria consummate, its
Giauque’s Settlement of Estates, at page 816, says that the present value of the contingent dower during the husband’s life may be ascertained with reasonable certainty from established tables of mortality, aided by evidence in reference to the health and vigor of the husband and wife. Nothing is given in this case upon those matters; nor can we conceive in what manner or by what rule the effect of the present condition of the health
In Sternberger v. McGovern, 56 N. Y. 12: 19, the court say:
“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. To charge him with the difference in the market value would be unjust, as it is obvious that this incumbrance upon the title would impair that to a much greater extent than the real value of the right. To compel him, in effect, to purchase the right, by paying the plaintiff therefor its value, determined by .the tables of survivor-ship and mortality, would in a case like this be unjust. He, as we have seen, contracted for an exchange of his property for that of the plaintiffs; under such a contract he ought not to be compelled to take the risk of the loss which the application of those tables to this particular case might subject him. 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 courts when the probable duration of life must be determined in adjusting the rights of parties. But to determine the value of the inchoate right of dower in this way, for the purpose of enforcing the specific per*209 formance of a contract for the exchange of real estate, with compensation, would be unsustained by precedents or sound principle.”
And in that case plaintiff was relegated to his remedy for damages.
In Cowan v. Kane, 211 Ill. 576 (71 N. E. 1098) [October, 1904], it is said:
“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 tables by which the value of an inchoate right of dower can be approximately estimated. * * It would be carrying the use of mortality tables to an unwarranted extent to apply them in such a case to determine substantial rights.”
As to whether a court of equity will enforce a specific performance in such a case, by ascertaining the present value- of the inchoate dower of the wife, and abating the price to that amount, the authorities are quite at variance. This may be partially accounted for by the fact that the courts, holding that performance will be decreed in such cases and the price abated to the extent of the value of the dower, are those in states where law and equity are administered by the same court, and all distinction in procedure between them is abolished, while those refusing to enforce them are courts in states where the procedure in law and equity cases is kept distinct. Upon this point, compare the classification as to procedure in 16 Cyc. 24, and note, with the cases cited in the opinion by Woodson, J., in the case of Aiple-Hemmelmann Real Est. Co. v. Spelbrink, 211 Mo. 671 (111 S. W. 480), and note to that case in 14 Am. & Eng. Ann. Cas. 671.
There is no dissent from the statement that plaintiff is entitled to a decree of specific performance, if he is
Specific performance in such a case does not rest on the same principle involved where the vendor owns only an undivided part of the fee, in which case the vendee, if willing to accept it, may tender the proportionate amount of the price; it being unnecessary for the court to -determine its value. See Moore v. Gariglietti, 228 Ill. 143 (81 N. E. 826), and note to this case in 10 Am. & Eng. Ann. Cas. 560. It'is said in Riesz’s Appeal, 73 Pa. 491, that the dower right of the widow is of such a contingent nature, depending as it does upon her surviving her husband, as well as her continuing in life after his death, that no abatement in the price can be made which would be just to both parties, without in effect making a new contract for them; a contract which, perhaps in the first instance, neither party would have agreed to, certainly not the vendor. This is the holding in Aiple-Hemmelmann, etc., Co. v. Spelbrink, 211 Mo. 671 (111 S. W. 480), in which the opinion is exhaustive, and is supported by the authorities which are there collated. The following cases support that view: Reilly v. Smith, 25 N. J. Eq. 158; Riesz’s Appeal, 73 Pa. 491; Fortune v. Watkins, 94 N. C. 304, 315;
Pomeroy, Specific Performance (1879), at section 460, sharply criticises Judge Sharswood’s reasoning on this question in Riesz’s Appeal, 73 Pa. 490, as utterly untenable. But we find an array of comparatively recent cases following and sustaining the rule, as laid down by the courts of Pennsylvania a,nd New Jersey, which seems to be the better and safer rule.
The case of Bostwick v. Beach, 103 N. Y. 422 (9 N. E. 41), relied on by plaintiff, is not in point, as the widow signed the contract of sale, and the ascertainment of the value of the dower was that it might be paid to her out of the purchase price, and she was required to convey her dower interest. Some courts grant such relief only in case the refusal of the wife to join in the deed was by fraudulent collusion with the husband. ■ Others hold that, if the vendee had knowledge that the vendor was married, specific performance with abatement will not be decreed. Lucas v. Scott, 41 Ohio St. 641; Savings Bank Co. v. Parisette, 68 Ohio St. 450 (67 N. E. 896: 96 Am. St. Rep. 672); Downer v. Church, 44 N. Y. 647; Fortune v. Watkins, 94 N. C. 304, 315.
It is said in Waterman, Spec. Perf. § 511:
“If the purchaser, when he enters into the contract, knows that the vendor has a wife, he of course takes the chances of the wife’s refusal to release her right of dower, and, in the latter event, if he insists on performance, he*212 cannot justly claim, and will not be entitled to, anything more than a conveyance of the husband’s estate.”
See, to the same effect, Pomeroy, Spec. Perf. § 461.
In this case it is conceded that plaintiff knew that defendant had a wife. Therefore, we conclude that it is impracticable to determine the value of the inchoate dower; that equity will not lend its aid to coerce the wife to join her husband in a deed to plaintiff, which would be the effect or tendency of the decree rendered; that plaintiff knew that defendant had a wife with inchoate dower in the land, and he took the chance that the wife would refuse to sign the deed; that to attempt to fix a new price at which defendant shall sell the property would be to make a contract for the parties, and not to enforce the one sued on.
Plaintiff has not offered to accept the deed of defendant alone, and he is not entitled to the relief prayed for. Therefore the decree is reversed, and the suit dismissed.
Reversed : Suit Dismissed.
Rehearing
Decided November 20, 1911.
On Petition for Rehearing.
Opinion by
The petition for a rehearing first suggests that it does not appear on what ground the court rests its decision, but it can hardly be misunderstood. The opinion concludes, from the argument preceding, “Therefore,” etc., and assigns four grounds why the suit cannot be maintained.
The principal argument of the petition is based on a misstatement of the effect of language of the opinion, viz., “Specific performance in such a case does not rest on the same principle involved where the vendor owns only an undivided part of the fee,” while the petition cites it as
Plaintiff also asks to have the decree modified to give plaintiff a contingent decree for specific performance against defendant for a conveyance of his title on payment of the contract price, if plaintiff elects to accept it, but there are two objections to such a decree: (1) Plaintiff should have elected whether he will accept before he asked for the decree. (2) The issues cannot be made up in this court. Defendant is brought into court on the contention that he must accept a reduced price for the property because he cannot give a clear title, and, as he is contesting that claim, it would be unjust to him to involve him in the-litigation and costs of the cáse on an issue not before the court.
The petition is denied.
Reversed: Suit Dismissed: Rehearing Denied.
