1 Ohio Law Rep. 458 | Ohio | 1903
I-t is insisted by counsel for plaintiff in error that the stipulation in the option is for a deed conveying the entire property free from any and all rights, claims, and incumbrances, and of the latter class is the inchoate right of dower; that the obligation, therefore, rested on the vendor to clear the title, and convey free of all claims of every kind; that failing in this the vendee should have been allowed to retain so much of the purchase money as will protect his title against such inchoate right of dower, and" the vendor decreed to convey on receiving the remaining part of the purchase money, and that the refusal of the circuit court to so adjudge was error.
This proposition of counsel assumes that a wife’s inchoate right of dower is an incumbrance on her husband’s land, and that the optional contract contains a stipulation on the part of the vendor that he will convey by deed 'embracing a covenant against in-cumbrances. While the first proposition seems never to have been distinctly decided in Ohio, the law is so held by courts of last resort in a number of the states, notably Maine, Massachusetts, Indiana, Wisconsin, Iowa 'and Michigan, and it is declared by Judge Scribner, in his admirable work on “Dower” (Yol. 2, p. 3), after a review of the authorities, that:
“A right of dower, although inchoate, is so far an incumbrance upon the lands on which it attaches as to be within the operation of the ordinary covenant against incumbrances.”
But if this proposition be conceded, still the plaintiff must establish that the contract binds the vendor to convey by deed containing the usual covenant against incumbrances. It is clear that there is not a specific stipulation to that effect. The language is: “By a good warranty deed and abstract of title from' organization of county.” The term “warranty” usually implies a warranty of the title, and'¡that it was the matter of title that the. parties had in mind in framing this stipulation is manifest from the terms used. The purchaser was to- have in his deed a warranty of title, and accompanying 'the deed, an abstract of title. A covenant of warranty and a covenant ■ against incumbrances are essentially different , in their nature. A breach of the one is. ordinarily 'attended by consequences differing from those following
But suppose this-position be doubted, still there is another phase of the case which we are unanimous in thinking satisfactorily disposes of it. Let ns inquire more specifically into the terms of the agreement, and the inferences to be drawn from it. What was the contract specific performance of which plaintiff demanded, and what the breach, if any? The parties were the vendor, the husband, and the vendee, the plaintiff. The paper itself carries the information that it was when drawn contemplated to be executed by some one other than the vendor, and since the plaintiff was aware that he had a wife living, the inference is natural that she was the person whose signature had been expected. The paper further showed that she had not signed, and the fact found is that she had -made no agreement to sign or sell the property, or release her inchoate right of dower. Puithermore, the absence of her signature would suggest a refusal by her. The company knew, therefore, that it was dealing with the husband alone as to his right and title in the property; it knew that the wife could not be compelled to sign, and that, therefore, the contract was impossible of specific execution, if construed to include her dower. It knew that if -was accepting a contract which on its face did not purport to sell any interest but that of the husband, and especially did not purport to sell or agree to convey any inchoate dower of the wife. In this situation of affairs the company chose to agree to pay the stipulated price for just what the option purported to sell. No fraud, or overreaching, or mistake of any kind, is charged. The vendor is ready to convey just what the stated, terms of his contract obligate him to convey. How can the company reasonably demand that the court import into the contract a stipulation to convey by a deed containing a covenant against this dower right, when no agreement of that character, nor respecting incumbrances of any kind, is expressed, and when in all prob
A number of cases cited by counsel in his brief hold the contrary doctrine, hut our conclusion is in accord with , the holding of this court in Lucas v. Scott, 41 Ohio St., 636. It is also the doctrine of the English courts, for which see Pomeroy on Con., Secs. 442, 458, 461; Castle v. Wilkinson, L. R., 5 Ch., 534, and James v. Litchfield, L. R., 9 Eq., 51. Likewise of the courts of New Jersey, Pennsylvania and Illinois. Hulmes v. Thorpe, 5 N. J. Ch., 415; Young v. Paul; 2 Stock., 401; Hawralty v. Warren, 18 N. J. Eq., 124; Welsh v. Bayaud, 21 N. J. Eq., 186; Reilly v. Smith, 25 N. J. Eq., 158; Peeler v. Levy, 26 N. J. Eq., 330; Clark v. Seirer, 7 Watts, 107; Riesz's Appeal, 73 Pa. St., 485; Humphrey v. Clement, 44 Ill., 299. See also, Bostwick v. Williams, supra, and 2 Story’s Eq., Secs. 730, 731, 732, 733, 734 and 735.
The judgment and order as rendered is affirmed.