| Ark. | Feb 10, 1908
(after stating the facts). The only question presented for our consideration is whether a warranty deed executed by appellant which his wife refused to sign, relinquishing her rights of dower, was a compliance with the contract.
This is not a suit in equity for a specific performance of the contract, nor is it a suit by one in possession under an executed contract for breach of the covenants of warranty in his deed; nor is it a suit by one in possession under an executory contract to convey. When these distinctions are borne in mind, .it will be seen that there is no real conflict between the authorities cited and relied on by appellant, and the doctrine that dower in real estate is an incumbrance upon the title. When one bargains and sells real estate, and is unable to secure his wife’s relinquishment of dower, he fails to make a marketable title, and is liable for damages in an action at law for a breach of his contract.
This court in an early case says: “There is a very marked distinction between executed contracts, where the vendee has accepted a deed and entered into possession, - and an executory contract, where the vendee is called upon to approve and accept a title in affirmance and completion of such contract. When he has accepted a title, he is presumed to have examined the evidences thereof, and held them sufficient; and, in the absence of fraud, must, in most cases, rely upon covenants of warranty, and show that he has been evicted, before he is heard to complain. But the case is very different where, under an executory contract, the vendor presents his title. The vendee is put upon inquiry, and has a right to demand such title as he contracted for. The title offered should be clear and free from incumbrance, doubt or suspicion.” Yeates v. Pryor, 11 Ark. 75. The correct doctrine is stated in Zebley v. Sears, 38 Ia. 509, as follows:
“Under a contract to .convey real estate upon final payment of the purchase money, if the wife of the vendor refuses to join with her husband in the execution of sufficient conveyance to enable him to perform his contract, the vendee may, at his option, refuse to take the deed executed by the vendor alone, and bring his action for breach of contract, or he may accept such deed as a part performance and retain so much of the purchase money as shall be proportionate to the outstanding contingent interest of the wife.”
The appellant’s contract called for a marketable title, which the proof showed he was unable to convey. Appellee was therefore entitled to any damages which she sustained by reason of this breach o.f t'he contract. Cross v. Everts, 28 Tex. 534; Wright v. Young, 70 Am. Dec. 453; Leach v. Forney, 89 Am. Dec. 574; Greenwood v. Ligon, 48 Am. Dec. 775; Parks v. Brooks, 16 Ala. 529" date_filed="1849-06-15" court="Ala." case_name="Parks v. Brooks">16 Ala. 529; Springle’s Heirs v. Shields, 17 Ala. 298. See Smith v. Howell, 53 Ark. 287" date_filed="1890-05-17" court="Ark." case_name="Armstrong v. Truitt">53 Ark. 287.
The judgment is correct, arid it is affirmed.