Troutman v. Gowing

| Iowa | Jun 17, 1864

Wright, C. J. —

I. The principles and rules recognized and settled in the case of Warnibold v. Schlicting (ante), *416must be regarded as decisive of tbe point most relied upon and discussed by counsel for appellant in this.

II. Complainant seeks to enforce the specific performance of a bond for the conveyance of land, signed by tbe bus-band alone, who is tbe sole respondent. By tbe final decree it is ordered that if tbe wife shall not join in tbe deed, one-third of tbe purchase-money shall be retained by tbe clerk (with whom tbe tender-money was deposited) until she should do so, or depart this life, unless otherwise ordered by tbe Court.

It is not pretended by appellee that the wife can by this proceeding be compelled to execute tbe deed, and thus part with her interest in tbe land. She is not before tbe Court, and none of tbe cases go so far as to hold that her interests and rights could be affected without bringing her directly before tbe Chancellor, and obtaining her consent on full deliberation. Not only so, but tbe pleadings show a refusal on her part to join in tbe deed. In this attitude no decree of course could be taken against her; and none could be made, compelling tbe husband to make a deed, containing a release of .her interest.

By the terms of the bond, however, complainant, if he asks it, may insist upon a conveyance by the husband alone. He has a right to insist upon a fulfillment of respondent’s covenants to this extent, or he might elect to recover bis damages for the breach. Having preferred to claim a specific performance, was it proper for tbe Court to direct tbe retention of one-third of tbe purchase-money until tbe wife should join in tbe deed, or until tbe happening of the other contingency named in the decree? Without some evidence as to what tbe value of tbe wife’s interest was, we think most clearly not. And testimony upon this subject is entirely wanting. Indeed such a disposition of tbe case does not seem to have been contemplated by either party, from tbe pleadings or any part of tbe record. There is no *417more warrant in tbe record for retaining tbe exact number of dollars and cents named than there is for any other sum. Under such circumstances, we have concluded to remand tbe cause, with directions, if tbe parties shall so desire, to take testimony as to tbe value of tbe wife’s interest in tbe land, either by a master or otherwise ; and in tbe light of such testimony tbe court below will make tbe proper order as to tbe money, so as to protect tbe rights of the respective litigants. It is believed that such examination may be obviated in view of the conclusion reached upon tbe main point, but this order is made, that it may be bad, if deemed necessary.

To this extent tbe decree below is reversed, and cause remanded, appellee paying the costs of this appeal.