Taylor v. Mathews
53 Fla. 776
Fla.
1907
Check Treatment
Hockbr, J.

(after stating the facts) : The errors assigned are:

1. The court erred in sustaining tile joint demurrer of the defendants to the bill.

2. The court erred in dismissing the bill.

The first contention made is, we think, as a general rule, sustained by the authorities. Where a demurrer to a bill offered by two' defendants is joint and several it may be good as to one, and bad as to the other, but where the demurrer is joint it must, be good as to each of them, or it will be bad as to each. Dzialynski v. Bank of Jacksonville, 23 Fla. 346, 2 South. Rep. 696; 1 Daniel’s Ch. Pl. & Pr. (6th ed.) 584, note 1, and 585, note 7; Wilcox v. Moudy, 82 Ind. 219; Dunn v. Gibson, 9 Neb. 513; People v. Mayor &c., of New York, 28 Barb. (N. Y.) 240. But this rule has not received universal assent, for in Wooden v. Morris, 3 N. J. Eq. 65, it was held that a joint demurrer filed by a husband and wife may be overruled as to the husband and sustained as to the wife. This ruling was based on the ruling of Lord Chancellor Eldon in Mayor, &c., of London v. Levy, 8 Vesey, Jr., 398, text 403, where the gen*784eral rule seems to be doubted. But in the later English case of Glasscott v. Copper Miners’ Company, 34 Eng. Chan. Rep. 305, text 309, Lord Eldon’s doctrine is disregarded.

For a misjoinder of parties defendant, those only can demur who are improperly joined. Story’s Eq. Pl. (9th ed.), section 544. We think that Mrs. Mathews would have pursued the better practice if she had demurred separately. However this may be, the fact that she may have been an improper party to this suit, did not affect the jurisdiction of the court, if her husband wás a proper party; nor prevent it from making a proper decree in the case. Gordon v. Simonton, 10 Fla. 179, text 196.

As we are of opinion that the decree should be reversed and remanded for further proceedings, in order to narrow the litigation, we will consider the legal relations which Mi’s. Mathews sustains to the case, made by the bill. Riddle v. Motley, 1 Lea (T'enn.) 468. Under the laws of this state a married woman is not free to contract in all respects as a feme sole. She is permitted under the constitution to make certain contracts with reference to her separate statutory property which may be held to. create a charge on that property, and she is permitted by the statutes to sell, convey or mortgage said property under certain restrictions and conditions. Mercantile Exch. Bank v. Taylor, 51 Fla. 473, 41 South. Rep. 22, and cases therein cited. It has been held in this state that a married woman cannot be compelled to specifically perform an agreement by which a husband and wife undertake to convey lands owned by the latter as her separate .property, under the constitution or statutes of Florida, and as to which she has not made her acknowledgment on a separate *785examination, although the party seeking relief has paid the consideration and is in possession. Goss v. Furman 21 Fla. 406. In so far as the wife is concerned this doctrine applies to bill for the specific performance of contracts for the conveyance of the real estate of the husband, in which the wife has only a contingent dower or other interest, as in the instant case, for there is no statutory authority for such a proceeding. Pomeroy on Contracts (2nd ed.), section 295; 6 Pomeroy’s Eq. Jur., sections 834, 835, 836; Richmond v. Robinson, 12 Mich. 193; Weed v. Terry, 2 Doug. (Mich.) 344; 2 Story’s Eq. Jur. (13th ed.), sections 731, 732, 733, 734, 735 and note 2 (a); Young v. Rodman, 10 N. J. Eq. 401; McCormick v. Stephany, 57 N. J. Eq. 257, 41 Atl. Rep. 840; Venator v. Swenson, 100 Iowa 295, 69 N. W. Rep. 522; Waterman on Specific Performance, section 511. We do not think, however, nor does the circuit judge so state in his opinion, that the joinder of Mrs. Mathews as a defendant was a good ground for dismissing the bill.

It is contended by the appellees that the bill does not show a proper tender by the appellant. The allegations of the bill with respect to the tender are very similar to those made in the case of Shouse v. Doane, 39 Fla. 95, 21 South Rep. 807. On page 108 this court says: “The requirement of a tender of purchase money used in this connection does not mean a tender strictly valid at law, but means a present readiness, willingness and ability in good faith to perform the acts required of one by the agreement, provided the other party will concurrently do the things which he is required by the contract to do, and rioUce by the former to the latter of such readiness, will*786ingness and ability.” citing cases. See also., Waterman on Specific Performance, section 439. In the instant case the bill alleges not only that the complainant has done what was required of him by the contract, but that he is and has always been ready to pay money due with interest, and executes the notes and mortgages. It is objected that the latter was not executed by complainant’s wife, but as the mortgage;was for purchase money that constitutes no objection to it, as the wife, if he had one, could acquire no interest superior to the lien for purchase money. Porter v. Teate, 17 Fla. 813, text 818; 1 Jones on Mortgages (4th ed.) 464, (6th ed.) 468.

It is also contended that the contract sought to be enforced was in the alternative, and that equity will not specifically enforce one of that character. The only case cited to sustain this contention is that of Armour v. Connolly (N. J. Eq.) 49 Atl. Rep. 1117, in which the vice chancellor decided that a contract to take down or remove a building within two weeks from the date the party of the first part shall vacate the premises was in the alternatve, and specific performance would not be compelled in equity of that sort o,f a contract, especially on a bill filed some days before the expiration of the two weeks. This decision was reversed on appeal, but upon other grounds, and it does not appear that this doctrine rvas approved. Armour v. Connolly, 63 N. J. Eq. 788, 62 Atl. Rep. 383. The only authority cited by the vice chancellor to sustain his position is Pomeroy on Specific Perfomance, section 298, text 302. This authority, it seems to us, is very far from sustaining him. The doctrine laid down by Pomeroy is that where an agreement consists of two or more parts in the alternative, and one or more become impossible of performance, or for some reason improper to be performed, a *787defendant will not be required to perform the other, because in doing so, the court would take away his right of election and would thereby be making a contract for him. But even this doctrine has its qualifications, as is shown in sections 299, 300, 301, 302. We have seen no authority which holds that the court in decreeing specific performance may not require a party to elect between two or more certain, feasible and proper alternatives, contained in his agreement. 26 Am. & Eng. Ency. Law (2nd ed.) 30; Fry on Specific Performance, section 675; Allender v. Evans-Smith Drug Co. (3 Ind. Ter.) 64 S. W. Rep. 558. If the facts of this case aré such as take it out of this rule, they are not stated in the bill, and should be set up in an answer.

We are of opinion that it is not essential that the .whole of the purchase money should have been paid by the complainant to entitle him to specific performance. He alleges that he has been given possession of the property under the verbal contract, and that he has expended labor and money upon.its improvement in such sort as give him the right of specific performance. Pomeroy on Specific Performance (2nd ed.), sections 112 to 136 inclusive; Waterman on Specific Performance, sections 268 to 282, inclusive; Shouse v. Doane, 39 Fla. 95, 21 South. Rep. 807. The complainant has not by his bill invoked the right to elect whether he, himself, will take a bond for title, or require a deed from the defendant George H. B. Mathews and give a mortgage to secure the notes. We are, therefore not called upon to decide the question. 1 Story on Contracts (5th ed.), section 815; 3 Page on Contracts, p. 2163; Coles v. Peck, 96 Ind. 333. Whether the complainant will be entitled to compensation in case Mrs. Mathews de*788dines to unite in a deed from her husband to complainant we need hot now determine, as the question is not presented to us by the pleadings or briefs.

The decree is reversed and remanded with directions that the bill be dismissed as to Martha J. Mathews, and the demurrer overruled and for further proceedings. The costs of this appeal will be equally divided between the appellant and appellee George EL B. Mathews.

Taylor and Parkhill, JJ., concur ; Shackleford; C. J., and Cockrell and Whitfield, JJ., concur in the opinion.