OPINION.
English, C. J.
Since the appeal in this case Mrs. Par-tee has departed this life, and her children have been made parties in her stead.
No one can read the pleadings and evidence and fail to be be impressed with the justness of the decree below, sustained as it is by the able opinion of the Chancellor, embodied in the Eeporter’s statement by direction of this court; and unless the decree is in conflict with some-well established and inflexible rule of Chancery law, it should be affirmed. So far as the decree for specific performance rested in the sound discretion of the Chancellor, it was well exercised, and would not be controlled here unless abused.
i- mar-to^onvey!
This was not a contract by Mrs. Partee to convey her lands to appellant in exchange for his city lots, hotel fixtures. Had she made such a contract, it may be ceded that it would have been void, (Wood and wife v. Terry et al., 30 Ark., 385), for our statutes and constitutions have not so far removed the common law disabilities of married women as to enable them to make valid executory contracts to convey their lands, though prior to the adoption of the present constitution they might convey any interest they had in real estate by joining their husbands in properly acknowledged deeds; and now the may convey estates acquired since the adoption of the Constitution of 1874, as if sole. Roberts and wife v. Wilcoxon & Rose, 36 Ark., 355; Ward v. Estate of Ward, Ib., 386.
The contract for exchange of the properties was made between Partee and appellant twentieth of December, 1876. It was made on the part of Partee, with the approbation of his wife, and in a few days afterwards he tendered to appellant a deed executed by himself and wife, which had been previously submitted to and approved by him, but which, when so tendered, he declined to accept, for no other reason than that his own wife had declined to relinquish her dower right in the hotel property.
Passing over some minor questions which were properly settled by the Chancellor, we will consider what the counsel for appellant designate as the main proposition in the case:—
2. si'bcima I’erjpoBMAsrcE Huslianwiiibii he térest.
1. That the Mosby place, and an undivided interest in • J L the Wildcat tract, which Partee contracted to convey to *n excl,ange f°r hotel property, were the sepaproperty of his wife ; that he had no interest whatever therein, which he could contract to convey, and that he could not make a valid contract to convey his wife’s lands.
Mrs. Partee did not hold the lands under any deed or will settling them upon her, to her sole and separate use, but she held them by inheritance from James Mosby, her father ; and all of the lands which her husband contracted to convey to appellant had been partitioned to her (subject to Mrs. Mosby’s dower right), except the Wildcat tract, in which she held an undivided half interest, her sister,'Mrs. Core, owning the other interest.
Mrs. Partee must have acquired the lands before the adoption of the present constitution, and as early as 1870 or 1871, because James B. Core, whose deposition was taken on the twenty-sixth of September, 1877, deposed that her father’s estate was divided between her and her sisters, and each one’s portion assigned separately, six or seven years before then.
It does not appear that she ever scheduled the lands.
It may be taken to be true, upon the record before us, that at the time Partee contracted to convey the lands the fee was in his wife, and he had the right to the use of them during coverture-, which was a freehold estate, (Schoulers Dom. Rel. p. 142), with expectancy of curtesy.
II. We will .next consider the question of mutuality.
-: Mutuality
After appellant declined to accept the deed jointly executed by Partee and wife, and tendered to him, the bill specific performance of the contract was filed, and the deed tendered in court.
Here it may be remarked that when the case came on to be heard, the Chancellor discovered that in drafting the deed a clerical error had been made in describing the lands, which neither of the parties had before noticed, and he declined to make a decree, unless another deed correcting the mistake was executed and brought in, which was accord-' ingly done by Partee and wife ; and then decree for specific performance was rendered.
At the time the contract was made Partee had a valuable interest in the lands, but was unable himself to convey the fee, because it was in his wife, as was known to appellant.
Appellant had the fee in the hotel lots, subject to his> wife’s right of dower. Neither party to the contract had in his own right power- to make a perfect title. But when the remedy was sought, and the decree for performance asked,
Partee was in a condition to deliver to appellant a clear title, as he had contracted to do.
In Clayton v. Ashdown, 9 Viner, Abr., 393, the contract was made by an infant, and the bill for specific performance brought after he was of age ; and it was objected by defendant that he was bound, when the contract was made, but the infant was not; and so there was no mutuality ; but the objection was overruled, and the contract decreed to be performed.
So in Fishmonger’s Company v. Robinson, 5 Manning & Granger, 131; it was held that the parties were mutually bound at the institution of the suit, and that was sufficient, though the plaintiff was not bound when the contract was made.
There are numerous English and American adjudications to sustain the proposition that it is sufficient, if the vendor be able to make a good title before decree pronounced, although he had ’ not a good title when the contract was made. See note to Rose v. Calland, 5 Vesey, Jr., Sumner’s Edition, p. 189, and cases cited. Hoggart v. Scott, 5 English Chancery, 293; Mortlock v. Butler, 10 Vesey, Jr., 292; Wynn v. Morgan, 7 Ib., 202; Hepburn v. Auld, 5 Cranch, 262; Dutch Church, v. Mott, 7 Paige, 77.
In Baldwin v. Salter, 8 Paige, 474, Chancellor Walworth said: “It is a general rule that specific performance of an agreement may be decreed if the complainant is in a situation to perform on his part, and make a good title, when the cause comes before a court for a decree.”
See also, Seymore v. Delacy, Cowan, 446; Hepburn et al. v. Dunlap & Co., 1 Wheaton, 178; Moss v. Hanson, 17 Penn. State, 382.
—: e has no Jfe contri ^0*'
One who attempts to speculate upon land to which he has no title, and no legal or equitable means of acquiring title, cannot ask specific performance, because he is not a bona fide contractor; but such is not the condition of one whose land had been sold for taxes, and the tax-deed made at the time he contracted to convey it, but the time for redemption had not expired, and it was in his power to redeem. Ley v. Huber, 3 Watts, 367.
In Cotton v. Ward, 3 Monroe, 313, Chief Justice Boyle said: “The invariable inquiry of a court of equity, when about to pronounce a decree, is not whether the vendor was-able, at the time he entered into the contract, (to make a good title), but whether he is able to do so ; and a purchaser cannot, it is said, insist upon being discharged from his purchase upon the master’s report of a defective title, if the same is capable of being made good in a reasonable time. (1 Maddock’s Ch’y., 349.) The British courts of equity have even gone so far as to give the vendor, on a bill being-filed by him for specific performance, time to procure an act-of Parliament to perfect his title. Sug. Vend., 252.”
In Ives v. Hazard, et al., 4 Rhode Island, 28, the court, said: “ It is now well settled by authority, that mutuality of remedy, existing at the time of action brought, is all that is required to enable a plaintiff to maintain his action” for specific performance.
Dresel et al. v. Jordan, 104 Mass., 407, is a strong case.
In Massachusetts a wife may contract to convey her land,, with the assent of her husband. The following is a correct, abstract of the decision of the Supreme Judicial Court of' that State in the case referred to :
“If a married womaii makes a written contract in her own name and her husband’s, with a third party, for the sale and conveyance to him of land owned in part by her, in her own right, and in part by her husband, their joint execution [and tender] of the deed of the land to the purchaser, before any indication of his intent to repudiate the contract, is a sufficient assent of the husband to the sale of her part of the land, and a ratification by him of the contract for the sale of his part, to entitle them to enforce specific perform•anee, without evidence of her original authority to enter into the contract in his behalf.”
Justice Wells, who delivered the opinion of the court, after deciding other questions, said: “This consideration leads to another objection urged by the defendant, namely : that there is a want of such mutuality as is requisite for an agreement entitled to specific performance. * * * * ‘The point of the objection is, that the seller must have, at the time the agreement is made, such title and capacity to convey, or such means and right to acquire them, as will enable him to fulfill the contract on his part; otherwise the court will not hold the purchaser to a specific performance. But we do not so understand the rule. On the contrary, if the obligation of the contract be mutual, and the seller is able in season, to comply with its requirements on his part, to make good the title which he has contracted to convey, we see no grounds on which the purchaser ought to be permitted to excuse himself from acceptance. The suggestion of such a rule in Hurley v. Brown, 98 Mass., 545, was foreign to the case there decided, and is not borne out by the •authorities cited,” etc.
And after reviewing other cases, Justice Wells added : “ The equitable rule is established by numerous authorities that where time is not of the essence of the contract, and is not made material by the offer to fulfill by the other party, and request for a conveyance, the seller will be allowed reasonable time and opportunity to perfect his title, however defective it may have been at the time of the agreement. And in all cases it is sufficient for the seller, upon a contract made in good faith, if he is able to make the stipulated title at the time when, by the terms of his agreement, •or by the equities of the particular case, he is required to make the conveyance in order to entitle him to the consideration” — citing quite a number of cases.
There was no dissenting opinion, and among the six eminent Judges, then composing the court, was the distinguished jurist Hon. Horace Gray, recently appointed an Associate Justice of the ¡Supreme Court of the United States.
The decision was criticised by an article in the American Law Review, (1872), but the writer’s name was not given, and we have no means of judging other than from the article itself, of his claims as a lawyer.
In Jenkins v. Hiles, 6 Vesey, 646-655, Lord Chancellor Eldon, remarked: “It is impossible to deny that, upon the old authorities a specific performance might be obtained if the title could be made good before the report. The •court would execute the contract then, regard being had to the justice due to particular cases.
And, in the latter case of Coffin v. Cooper, 14 Vesey, 205, Lord Eldon held that if the master report that the plaintiff will have a good title upon getting a term, procuring administration, etc., the court will put him under terms to procure that speedily; and the motion of a defendant to be •discharged, because the master reported that a good title could not be made, was refused, the plaintiff having in the meantime obtained an act of parliament to enable him to ¡perfect the title.
These are among the cases reviewed and relied on in the •opinion of Justice Wells.
The contract to convey was not valid as to Mrs. Dresel, because she signed it without the consent of her husband ; ■and it was not binding'on him because she signed his name to it without authority; yet, they, in accordance with the contract, joined in the execution of a deed, and tendered it, and •on refusal of the purchaser to accept it, they filed a bill for specific performance, and brought the deed into court, and the court decreed performance. There was no mutuality when the contract was made, but there was when the decree was asked.
In Richards v. Green, 8 C. E. Green, (23 New Jersey), 536; the husband, Green, went into possession of a house and lot under a parol agreement to purchase of Richards. Afterwards Richards signed a written contract, in which he agreed, with the consent of the husband, to sell the property to the wife, Mrs. Green, for $2,500, and that when $500 and the back rent were paid, he would make her a deed, and take a mortgage for $2,000. The back rent, was paid, and a tender of the $500, and of a bond and mortgage for the residue of the consideration money being-made to Richards, he refused to convey the premises to Mrs. Green, and Green and wife filed a bill for specific performance. The court refused to decree enforcement of the written contract made with Mrs. Green; because, at the time the contract was made and at the time the decree was asked she was under the disability of coverture, and unable to perform the contract on her part; but the court decreed her the title, on the terms tendered, upon the parol contract made with her husband, who was under no disability to contract or perform.
In remarking upon the agreement with the wife, the Chief Justice said : “In every case that I can find, where specific performance has been ordered, a mutual remedy existed upon it at the time of the rendering of the decree. It seems to me that the rule is universal to this extent, that equity will not direct a performance of the terms of an agreement by one party, when, at the time of such orderr the other party is at liberty to reject the obligations of such agreement.”
And he illustrates the rule by the case of Flight v. Bolland, 4 Russ., 298, where the plaintiff was an infant when he made the contract, and was still an infant at the time he asked a decree to enforce its performance.
But in this case the contract was not made with the wife, but with the husband, who was under no disability, and bound by it, and able to perform it when the decree was made, for he had delivered in court a deed executed by himself and wife; he had done what it was understood by appellant he was to do, when the contract was entered into between them.
In Farley v. Palmer, 20 Ohio State, 223, Palmer and wife entered into a written coxxtractto convey to Farley land to which the title was in the wife. At the time of making the contract a deed was executed by Palmer and wife, and piaced in the hands of a third person, and by the terms of the contract this deed was to be delivered to Fax’ley.upon his paying the stipulated purchase money. Upou Farley’s x-efusal to pay the purchase money and receive the deed, at the time agreed upon, Palmer and wife brought their action for a specific perfonnance. It was insisted for the defense that Mrs. Palmer, being a married woman, was incapable of xxxaking the contract, and was xxot bound by it, and it was therefore, xxot binding oix Farley, for want of mutuality. But she and her husband had executed the deed, and placed it in the hxuxds of the third party, (who was regarded by the court as agent of both parties), to be delivered on payment of the pux’chase money, according to their contract, aud the court decreed specific performance of the contract.
It is difficult to see any difference between that case and this, oxx principle. Here the husband contracted to make title to lands known to be in the wife ; he promptly procured the wife to join him in the execution of a deed, and tendered it to appellant, who declined to accept it on no other ground than that his own wife had refused to relinquish dower in the lots, which he had bound himself by the contract to convey in exchange for the lands ; and then both husband and wife brought the deed into court, and asked specific performance. With what plausability could it be said that the husband was not able to perform the contract, and that the wife was not bound by it, when both of them had executed and delivered the deed in court, and asked appellant to accept it? On what substantial principle could the Chancellor have refused the decree, dismissed the bill, and left Parteo to sue in a court of law for damages for the breach of the contract ?
In Watts, et al. v. Kinney and wife, 3 Leigh, 272, 292, Henry Saint George Tucker, President of the Court of Appeals said: “The wife in this case is the essential contracting party, if indeed she is to be called a contracting party, who is bound or not bound, at her absolute will and pleasure. But only thus far bound, the other party cannot have been bound, and cannot therefore have been a debtor. Upon this ground also it is probable that no specific performance could properly have been decreed, since the want of mutuality in the contract is generally a valid objection to the exercise of that jurisdiction. (1 Madd, Ch. Prac. 423-4.) Certain it is, I think, that no decree should have been rendered against the vendee until the vendor had procured and offered in court a deed executed with all proper solemnities to pass the title of the wife; since otherwise, this solecism is presented, that the decree between the parties is binding or not binding, at the will and pleasure of one of them.”
That is just what Partee did in this case : The deed of himself and wife, executed on her part with all proper solemnities, was brought into court.
In McCann v. Jane, 1 Robinson (Virginia) 256, the husband sold land, in which his wife had an estate in fee, and executed a bond to the purchaser, conditioned that he and his wife would make a deed to the purchaser within a specified time. The wife declined joining the husband in the deed, and forbid him to convey his estate, and he refused to make any conveyance. Thereupon a bill was filed by the purchaser against the husband stating that there were children by the marriage, and that the husband was therefore entitled to a life estate, and praying that he might be decreed to convey to the complainant all his interest in the land, reserving to the complainant his right of action at law upon the bond against the husband for failing to procure bis wife to unite with him in the conveyance. A demurrer was sustained to the bill, and it was dismissed, and the decree was affirmed by. the court of appeals.
, In a note the Reporter states that the decree was affirmed ■on the ground that a court of equity ought not to sustain a bill for specific performance as to part, and allow the plaintiff to proceed at law for the recovery of damages as to the residue.
In Clarke et al. v. Reins, 12 Grattan, 98, it was decided that a court of equity will not decree a specific performance of a contract by a husband and wife for the sale of the wife’s land, at the suit of the vendee, the wife refusing to •execute the contract. The court did not favor the earlier English practice of compelling the husband, even by imprisonment, to' procure the wife’s title, as it might create domestic disturbance, and was contrary to American public policy.
This is not a case where the vendee is seeking to compel the husband to procure the wife to convey her title.
On that subject, Judge Story said : “ There is another sort of contract, respecting which there has been no small diversity of opinion, whether a specific performance ought to be decreed or not. It is where a husband covenants that his wife shall levy a fine, or execute any other lawful conveyance to bar her right in his estate, or in her own estate. There are many cases in which covenants of this sort have been decreed to be specifically performed. And, on one occasion Sir Joseph Jekyll, Master of the Rolls, said ‘ there have been a hundred precedents, where, if the husband, for a valuable consideration, covenants that the wife shall join him in a fine, the court has decreed the husband to do it, for he has undertaken it and must lie by it, if he does not perform it.” ’
Then, after showing that the later English decisions did not favor this practice, and that it was contrary to public policy in our country, he adds : •‘Where, indeed, there is no pretence to say that the wife is not ready and willing to consent to the act, and that defense is not set up- in the answer, but the objections to the decree are put wholly upon other distinct grounds ; there may be less difficulty in making a decree for a specific performance. Even in such a case, a court of equity ought not to decree in so important a matter affecting the wife’s interest, without bringing her directly before the court, and obtaining her consent upon full deliberation. But when the answer expressly shows an inability of the husband to comply with the covenant, and a firm refusal of the wife, it will require more reasoning than has yet appeared to sustain the justice or equity or policy of the doctrine.” 1 Story Eq., 2d Ed., secs. 731-735.
In Luse v. Deitz, 46 Iowa, 205, Luse contracted to convey to Deitz a brewery property, which did not belong to him; but his wife was the owner of it by recorded deed, which was not known to Deitz when he entered into the contract with Luse, and agreed to convey him other property in exchange for the brewery property, Mrs. Luse was not a party to the contract, and in no way bound thereby. Luse tendered a deed executed by himself and wife to Deitz, who refused to accept it, and Luse brought an action of specific performance. The decree was refused on the ground of want of mutuality at the time the contract was made. It seems that Luse had no interest in his wife’s brewery property — nothing that he could contract to convoy.
To sustain the proposition that mutuality must exist at the time the contract is made, Chief Justice Day quoted Section 286 of Fry on Specific Performance of Contracts. But in see. 154, the same author said : “ The incapacity to ■contract, and the incapacity to execute a contract, are of course different questions ; the one must be judged of at the time of the contract, the other when its performance is sought.
In Leading Cases in Equity, White & Tudor, vol. 2, part 2, p. 1101, it is said: “The language held in Green v. Richards, (sup.) implies that a specific performance may be decreed at the instance of a complainant who is sui juris, although she was under the disability of coverture at the time of entering into the agreement, because the institution of the suit supplies the mutuality which was wanting in the first instance. A like principle was applied in Clayton v. Ashdoion, 9 Viner Air. 393, in favor of an infant who became of age before the filing of the bill. The conclusion may be at variance with the doctrine held in other instances, that a contract will not be specifically enforced unles it was binding when made. Ante. 1099, Hooner v. Calhoun, 16 Grattan, 109; but it is sustaiued by the weight of authority and by principle; see The Fishmonger’s Company v. Robinson, 5 M. & G., 131.”
In Coldcleugh v. Johnson, admr., et al. 34 Ark., 316, where the fee was in a feme covert, and a bond for title given by her and her husband, and the purchaser had gone into possession and paid part of the purchase money, it was held that if the deed of the husband and wife was tendered, or the deed of the wife, if she had become discovert, the purchaser could not defeat the bill for specific performance-on the ground of want of mutuality at the time the bond for title was made.
Turner v. Baker, 30 Ark., 195, is notin point. There, aá said by Bro. Harrison : “As the contingency upon which the assent of the parties depended, never happened, there was no contract,” etc. See on the-subject of mutuality in suits at law, Drennen v. Boyer & Clark, 5 Ark., 497.
Rogers ad., v. Brooks,, 30 Ark., 612, was ejectment by the husband as administrator of the wife, and by cross-bill defendant sought specific performance. On page 627 the Chief Justice said: “Rogers could not bind his wife or her heirs by contract to convey the legal title to any part of her lands., It is probable, from the evidence, that Mrs, Rogers in her lifetime, knew of the contract between her husband and Brooks, and ivas satisfied with the division line, which seems to have been agreed upon between them. But this did not entitle Brooks to enforce a specific performance of the contract as against her or her heirs. She could only bind herself or her heirs by a deed of conveyance, executed according to the forms prescribed by law, and this Brooks failed to obtain, Wood and wife v. Terry et al,, ante, and cases cited.”
There the wife was dead when the remedy was sought, and had not bound her heirs. Here Mrs. Partee was living, joined her husband in the suit, and they tendered in court, as they had done before suit, a joint deed for the lands which the husband had, with her approbation, contracted to convey, and which appellant had declined to accept for no other reason than that his wife had refused to relinquish dower in the lots, which he had agreed to convey in exchange for the lands ; and this was waived, aud no compensation asked in the bill,-or taken by the decree for the value of the dower right.
The truth of the whole matter, from the evidence, is, that appellant changed his mind, and concluded to make a child’s bargain of it; and attempted to defeat the bill for specific performance by the defense of want of mutuality, when he and Partee, both sui juris, entered into the contract.
Our conclusion upon the question of mutuality, which we think is sustained by the weight of authorities, may be formulated thus:
Where the husband, having use during coverture of the wife’s lands, contracts to convey them with her approbation, to one who knows that the fee is in the wife, and husband and wife promptly join in the execution of a deed and tender it to the purchaser, and he, for no good reason, declines to accept, and they join in a bill for specific performance and tender a good deed in court, and the Chancellor decrees performance, the decree should not be reversed on appeal.
Some of the minor points made here for appellant are not founded on the facts in evidence, and others were as indicated above, well answered by the opinion of the Chancellor,
Decree affirmed.