88 W. Va. 538 | W. Va. | 1921
Upon a bill by the purchasers for specific performance of a contract for the sale and purchase of a tract of 37 acres, more or less, of land in Taylor County, dismissed on demurrer, the question presented is whether there can be specific performance of the contract alleged.
The plaintiffs are husband and wife, and the defendants are also husband and wife. The contract in writing pleaded is alleged to have been made pursuant to prior negotiations and agreement of all the parties, but signed only by the husbands, but which the bill alleges was subsequently carried into a deed, duly signed and acknowledged by the defendants, but retained in their possession, and though demanded by
It is a coneessum in tbe case that Mrs. DeMoss not having signed or acknowledged tbe original contract, so as to divest ber of ber incboate right of dower, can not be made to execute that contract, and that unless tbe deed subsequently made and executed, but not delivered, takes the case out of tbe general rule, tbe contract can not be enforced against her. Tbe cases so bolding are Simpson v. Belcher, 61 W. Va. 157; Rosenour v. Rosenour, 47 W. Va. 554; Amick v. Ellis, 53 W. Va. 421. And in Crookshanks v. Ransbarger, 80 W. Va. 21, we decided, as tbe law then was, that tbe incboate right of dower of a married woman is not released or relinquished by an executory contract of sale of tbe real estate of ber husband, signed, sealed and acknowledged by ber in tbe manner prescribed by section 4, chapter 73 of tbe Code 1913, and delivered to the! vendee, and that a court of equity will not compel ber by a decree of specific performance to join in the- execution of a deed conveying tbe land to tbe vendee.
But it is said in reply that since tbe decisions in tbe eases cited, tbe statute, sections 4 and 6, chapter 73 of the Code, has been amended by chapter 65 Acts of 1919, and that by this amendment, a married woman like any other person may now be made to specifically execute ber contracts, not void under tbe statute of frauds, and that although in this case Mrs. DeMoss did not join in tbe original contract or memorandum in writing between tbe husbands, tbe deed made and acknowledged for record, though not delivered in escrow or otherwise but retained by defendants as tbe bill alleges, constituted such memorandum in writing as to take tbe case out of tbe statute and renders tbe contract enforceable against both defendants agreeably to tbe holdings of tbe court in tbe case of Moore, Kepple & Co. v. Ward, 71 W. Va. 393, and other cases cited and relied on. In that case we decided that a deed so executed and delivered in escrow was evidence of tbe oral contract in writing .and such
Before the amendment, as we held in Crookshanks v. Ransbarger, supra, the wife, though a party to the executory contract of her husband for the sale of his land, could not be compelled to execute the same by signing and acknowledging a deed therefor. Now, by the amendment, if she signs and acknowledges a deed or other writing agreeing to sell and convey, the statute says it shall operate to pass or convey from her her right of dower in the real estate embraced therein. Whether in a suit against the husband for specific execution of an executory contract so signed and acknowledged by her she would be a necessary party and could be required to sign and acknowledge another deed or contract, we need not decide in this case, for it does not properly arise.
The land involved is the property of Justus F. DeMoss, the husband. The demurrer concedes that he made and executed the original contract pleaded; and he is bound thereby. Whether the bill presents a case for specific performance by him depends upon whether or not he is capable of performing it. The bill alleged that both defendants joined in a deed, in due form, properly signed and acknowledged and containing the covenants, reservations and agreements of the original contract, but that they now refuse to
What effect the amendment of sections 5 and 6, chapter 73 of the Code, may have on the rights of the parties to specific performance is not now presented and is not decided. The only question we do decide is that the bill is good upon demurrer and that the matter urged “and relied on by de-murrants, if good in law, is defensive only and not properly presented by the demurrer.
For the foregoing reasons we are of opinion to reverse the
Reversed and remanded.