75 N.J.L. 181 | N.J. | 1907
The opinion of the court was delivered by
This is an action against a married woman to recover damages for breach of a written contract to convey land in which her husband did not join. Her signature was not acknowledged. The contract bears date October 23d, 1905, and the balance of the purchase-money, after deducting a deposit, was to be paid December 1st, 1905; prior to that
Two defences are relied upon — that a married woman cannot bind herself by a contract to convey land, and that the plaintiff was in default because he failed to tender the balance of the purchase price.
Prior to the legislation of 1874 a married woman could not, by her own act, bind herself to convey her land. Pentz v. Simonson, 2 Beas. 232. By the fifth section of the revision of 1874 (Rev., p. 637) she was authorized to bind herself by contract in the same manner and to the same extent as though she were unmarried, with certain exceptions not material to the present case, but section 14 (Rev., p. 639) provided that nothing contained in the act should enable any married woman to execute any conveyance of her real estate, or any instrument encumbering the same without her husband joining therein as theretofore.
The present case presents the question which was left undecided in Lorillard v. Union Brick and Tile Manufacturing Co., 18 Stew. Eg. 289, whether a married woman can enter into a contract for the sale of her real estate apart from her husband'.
The language of the fifth section is broad enough to cover the present case, unless it is modified by the fourteenth section, and the construction thus far put upon the act by the courts has favored the power of the wife to contract as a feme sole. In Sullivan v. Barry, 17 Vroom 1; affirmed, 18 Id. 339, it was held that the wife could, without the co-operation of her husband, create a term of five years in her lands, and Chief Justice Beasley said: “The leading object of the statute is to give the married woman her property, both real and personal, as though she were a feme sole, and to clothe her with all the rights and authorities requisite for its possession, enjoyment and disposition, and it is indisputable that she is to have the exclusive use and benefit of her realty as though she had no husband.”
It was suggested, but not decided, in Corby v. Drew, that if a married woman could not convey without the concurrence of her husband, she could not agree to convey without that concurrence. The impossibility of performance of a contract to convey made by a married woman alone is, however, not strictly speaking, an impossibility in law such as would make the contract void. It is an impossibility which may or may not arise, and is dependent on the will of her husband. One authorized to contract may make a valid contract although the possibility of its performance depends on the will of another. An example is a contract by a lessee to assign his lease, although it contains a covenant not to assign without license. Lloyd v. Crispe, 5 Taunt. 249. Other cases are cited in the dissenting opinion of the present Chancellor in Chism v. Schipper, 22 Vroom 1, 18.
It is not necessary to dwell upon this point, since a similar question has been decided by the Court of Errors and Appeals. In Brown v. Honniss, 41 Vroom 260, the plaintiff sought to recover damages for breach of a contract to convey land. The defendant was unable to make a clear title because of his wife’s inchoate right of dower, but it was not suggested that such an impossibility of performance relieved him from liability to action.
We think the fact that the defendant is a married woman is no defence to this action.
The second ground of defence is that the plaintiff’s action was brought before the time for performance of the contract had come and without tendering the balance of the purchase-money. It is sufficient to say that the action was not brought until the defendant had, by the conveyance to Levinson, put
The brief for the appellant complains of the action of the trial judge in awarding damages equal to the difference between the agreed purchase price and the price paid by Levinson. The record, however, shows that no question was raised before the trial judge as to the measure of damages, and there is no determination in point of law in this respect presented for review. The record shows, however, that objection was made to Levinson’s testimony on this subject “as not a fair question for the measure of damages.” Whether the evidence was competent depends upon whether the circumstances of the case were such as to bring it within the rule of Gerbert v. Trustees, 30 Vroom 160, or of Brown v. Honniss, supra. The facts seem to bring the case within the latter rule. The only difficulty in the way of the defendant, if she desired to perform her contract, was the necessity of having her husband join in the deed; he did join in a deed to Levinson only eight days after the contract with the plaintiff, and the fact that this deed was dated back to October 18th, five days before the contract, is suspicious. If the rule of Brown v. Honniss is applicable, Levinson’s testimony was admissible. Although the bargain with Levinson was not the plaintiff’s bargain, still the actual price which the land brought at the very time in question was relevant upon the question of market value.
We find no error and the judgment is affirmed, with costs.