Fisher v. Miller

109 So. 257, 92 Fla. 48

• Court: Supreme Court of Florida
• Decided: June 29, 1926
• Status: Published

Opinion

Brown, C. J.

(After stating the facts) :

It will be observed that the plea does not allege that Mrs. Miller, wife of the defendant, refused to join in the execution of the conveyance to thn complainant; it merely alleges that the defendant Miller had been and was unable to make complete conveyance of the land without having his wife join therein. Nor does the plea allege that the property involved was the homestead of the vendor; so the question of what would have been the effect if the property were a homestead, is not before us.

The bill does not allege that Mrs. Miller joined in the deed made by her husband to the second vendee, Laughner, and she is not made a party defendant to the bill. Nor does it appear that she was a necessary or proper party, it not being alleged that she had joined in the contract sought to be enforced, or in the deed to the second vendee. Taylor v. Matthews, 53 Fla. 776, 44 So. 146.

The doctrine laid down in the first headnote of the case of Hannan v. Holz, 84 Fla. 1, 92 So. 874, applies in this case in so far as the right and title of Miller conveyed by him to Laughner and wife, is concerned. This headnote follows the language of the opinion and reads as follows: “One purchasing property with notice that the grantor had contracted to convey to another may be compelled to perform the contract in the same manner and to the same extent as the grantor would have been liable to do, had he not transferred the legal title.” This follows the rule announced in Drake v. Brady, 57 Fla. 393, 48 So. 978, 17 Ann. Cas. 1035; Drake Lumber Co. v. Branning, 66 Fla. 543, 64 So. 263. See also Pomeroy Spec. Perf. Sec. 465.

It is contended by appellee that this doctrine does not apply here, because the contract with the first vendee, of which the second vendees had notice, was not such a contract as could be specifically enforced in equity on account of the failure of the vendor's wife to joint in the contract, and that, therefore, such second vendees took title with notice of an unenforcible contract, for the violation of which the vendor could only be sued personally for damages for breach thereof, and which would not affect the title to the property nor the right to convey the same. This contention is based upon the proposition, boldly asserted and ably argued in behalf of appellees, that specific performance does not lie against a married man as to a contract for the sale and conveyance of land where the wife did - not join in the execution of the contract, especially when the purchaser knew at the time of the purchase that the vendor was married, and that therefore the plea, setting up that at the time of the making of the contract the defendant Miller was a married man and unable to make a complete conveyance of the land without his wife joining therein, and that complainant was chargeable with notice of these facts, is a sufficient defense, although said plea fails to allege that the wife had in fact refused to join in the execution of the deed as required by the contract.

In support of this proposition, appellees cite the case of Murphy v. Hohne, 73 Fla. 803, 74 So. 973. In the opinion in that case, it is said: “And the complainant below has no right to enforce specific performance against the wife, and as when the contract was made the complainant, not knowing the defendant was a married man; contemplated a conveyance by the defendant of the entire property right in the land, which could not have been contracted for if contemplated by the defendant, he knowing he had a wife and no contract by her being made as required by the statute, the court will not require specific performance in part and compensation for the remainder, that relief not appearing in this case to be essential to the maintenance of the legal rights of the complainant growing out of the contract as it was accepted by him. It does not clearly appeal' that appropriate proceedings at law will not afford a complete remedy.” And in the opinion on motion for rehearing, the following appears: “The allegations of the complainant clearly show that in accepting the contract to convey he did not contemplate the existence of or the conveyance of a dower interest in the land; and though the complainant may have been deceived as to the defendant’s right to convey the land, this does not afford an equity for specific performance. Deception may give a right of action at law or’ in equity for appropriate relief; but specific performance is not a general remedy for deception, and the allegations in this case do not show a clear right to enforce in part a contract to convey land.”

In the instant case, specific performance against the wife is not prayed for, nor does the bill allege that the purchaser did not know the vendor was married at the time the contract was made. Per contra, this fact was known to the purchaser, as is specifically alleged in the plea. Nor does it appear in the instant case that any deception was practiced with reference to the marital status of the vendor or the existence of a dower right in the land. The case of Murphy v. Hohne nowhere lays down the broad proposition contended for by appellees, to the effect that a contract for the sale and conveyance of land made by a vendor who was a married man, not joined in by the wife, will not be enforced in equity, as against such vendor, in so far as Ms right and title in the property are concerned.

For aught that appears in the plea, the wife in this case ’'■''would have joined in the execution of the deed to the purchaser if she had been requested by her husband to, do so. Even if the contract set up in the bill be construed to call for conveyance of complete title to the property, the plea does not show that there had been actual inability on the part of the defendant Miller to secure his wife’s joinder in the execution of the deed. So the plea does not constitute a sufficient defense to the bill, unless the appellees ’ contention, that the husband’s contract was unenforcible ab initic by specific performance, merely because the wife had not joined therein, be admitted.

Manifestly, in such a case, specific performance does not lie as against the wife. She cannot be required by the courts to divest herself of her dower where she had made no contractual obligation to that end, executed with the formalities required by our statute. Sec. 3803 Rev. G. Stat.

In the case of Knox v. Spratt, 23 Fla. 64, 6 So. 924, this court recognized rhe general rule to be that in case the vendor is unable to comply with the contract by reason of not having the legal title to all the land sold, yet the vendee is entitled to specific performance of the contract for such as lies in the power of the vendor to convey, with compensation for the residue, and the court quoted with approval the old rule, “that in equity the purchaser, though he cannot have a partial interest forced upon him, yet if he entered into the contract in ignorance of the vendor’s incapacity to give him the whole he has a right to insist that the vendor shall convey to him so much as is in his power to do. ’ ’ But the court held in that case that inasmuch as complainant’s bill admitted that notice was given at the time of the sale that there was a deficit in the claim of title, the complainant was not entitled to specific performance of part of the contract with compensation for residue as prayed for in the bill.

In the opinion in the ease of Rose v. Henderson, 63 Fla. 564, on pages 590 and 591, it was, said: “There is scarcely any conflict of authority upon the proposition that if one persoon contracts to sell a parcel or tract of land representing himself as the owner of the whole and the vendee is not informed as to his interest and it turns out that he does not own the title to all he contracted to sell, a court of equity-will not permit him to decline to convey what he owns, but at the instance of the vendee will compel him to perform his contract so far as he can do so, with an abatement of the purchase price. Most of the authorities cited by appellees are of that kind. Lord Eldon, in Mortlock v. Buller, 10 Ves. Jr., 292, text 315, thus stated this rule: ‘If a man, having partial interests in an estate, chooses to enter into a contract, representing it, and agreeing to sell it, as his own, it is not competent to him afterwards to say, though he has valuable interests, he has not the entirety; and therefore the purchaser shall not have the benefit of his contract. For the purpose of this jurisdiction, the person contracting under those circumstances, is bound by the assertion in his contract; arid, if the vendee chooses to take as much as he can have, he has a right to that; and to an abatement; and the court will not hear the objection by the vendor, that the purchaser cannot have the whole. ’ See note to Eppstein v. Kukn, (225 Ill. 115, 80 N. E. Rep. 80) 10 L. R. A. (N. S.) 117; Castle v. Wilkinson, L. R. 5 Chan. App. Cas. 534. See Price v. Griffith, 1 De Gex M. & G. 80, for some qualification of this rule. Also Knox v. Spratt, supra. "

This question has been very carefully considered by the erudite author of the recently published third edition of Pomeroy’s Specific Performance, wherein the cases are cited and reviewed. As the author’s reasoning and conclusions on these questions are, in our opinion, lucid and sound, we quote therefrom sections 460 and 461, inclusive:

“460. When the wife of vendor has an inchoate dower right, and refuses- to join in the deed.

.“The third case, where the wife of the vendor has an inchoate right of dower in the land which he agrees to sell, is the one which is constantly arising in this country. It seems to be settled in some of the states as a general rule, whether the vendee knew of the wife’s dower interest or not, that when a contract is made with the husband, and the wife refuses to release her dower, the vendee cannot have an abatement from the price if he obtains a specific performance; he must either abandon the contract, or obtain a conveyance of the husband’s estate, and sue him at law for a breach of the contract, or else content himself with the legal remedy alone. The reasoning quoted in the note, by which'this rule is supported, is certainly very unsatisfactory, and the argument by which a judge sitting in equity justifies a party in the breach of his contract, and throws the shield of his decision over the defaulting party alone, is in striking contrast with the utterances of those equity judges who have built up the system and developed its doctrines from the eternal principles of right and justice. In fact, all the grounds given by the learned judge against awarding compensation are utterly untenable. The argument that the court cannot make a new contract for the parties, would apply with exactly the same force to every case in which an abatement from the price is decreed; and, notwithstanding his assertion, it is plain, upon the slightest examination, that the case is identical in principle and in its particulars with all those instances of partial failure or defect of title in which compensation is always given to the vendee. The particular difficulty in the way of ascertaining compensation alleged by the judge, is shown to be not difficult at all by two distinct considerations: First, if the husband himself had procured his wife to refuse, for the purpose of defeating the contract, then, as will be seen in the following paragraphs, a specific per formalice, with compensation, will be decreed; but on the reasoning of the court, this could not be done, since the difficulty of fixing upon the amount of the abatement is just as great in the one case as in the other — the contingency existing in the latter instance as well as in the former. But, secondly■ — and this answer is overwhelmingly conclusive — it is conceded by the court that the vendee can sue at law and recover damages against the vendor for the breach of the contract. Now, in the action at law the damages must he assessed upon exactly the same basis as that upon which the abatement of the price would be ascertained in equity — if not, the assessment would be mere conjecture. If the damages can be assessed at law, notwithstanding the contingency, then, upon the same principle, and with the same ease, the compensation can be ascertained' in equity. A party is dismissed from a court of equity because the relief which he asks is said to be impossible ; he goes to a court of law and obtains' the very same relief, on the very same facts, and in the very same manner' in which he asked to have it granted in equity. In truth, a court of equity, in awarding eompenstation, does not neeesarily require that the basis upon which the amount is ascertained should give a result with absolute accuracy; it is enough if the result can be fixed with reasonable certainty. Now, by the aid of the life tables, disclosing the probable life of the wife, the present value of her dower can be ascertained with perfect ease upon the supposition that she will survive her husband; and even if this should possibly be a little too large, the husband, who has entered into a contract which he cannot fulfill, is in no position to demand favor from the court, especially as the money will only be withheld for a time by the vendee, and will be paid at the expiration of the dower right by death of the wife, whether she die before or after her husband.

“461. Knowledge of the vendee. The true principle is that laid down in the English cases heretofore quoted. If the vendee knows that the vendor is a married man, he knows that his wife is entitled to dowér, and that she cannot be compelled to release her dower right, and entering into the contract with such knowledge, he is not entitled, within the doctrine as well established, to ask anything more than the husband himself can give. It is the vendee’s knowledge, and not any notion of making a new contract for the parties, which prevents the purchaser from obtaining compensation.' On the other hand, if the vendee entered into the contract in ignorance that the vendor was married and under the supposition that the vendor could give an unincumbered title, then he ought to have a specific performance with an abatement from the price. ’ ’

Some of the cases supporting the above propositions are: Herschman v. Forehand, 114 Ark. 436; 170 S. W. 98; Osborne v. Fairley, 318 Ark. 433, 211 S. W. 917; Martin v. Merritt, 57 Ind. 34, 26 Am. Rep. 45; Leach v. Forney, 21 Iowa 271, 89 Am. Dec. 574; Thompson v. Colby, 127 Iowa 234, 103 N. W. 117; Noecker v. Wallingford, 133 Iowa 605, 111 N. W. 37; Williams v. Wessels, 94 Kan. 71, 145 Pac. 856; Melamed v. Donabedian, 238 Mass. 133, 130 N. E. 110; Walker v. Kelly, 91 Mich. 212, 51 N. W. 934; Sanborn v. Nocking, 20 Minn. 178; Scheerer v. Scheerer, 287 Mo. 92, 229 S. W. 192; Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871, L. R. A. 1915C 367; Luczak v. Mariove, 92 N. J. Eq. 377, 112 Atl. 494; Binns v. Smith, 93 N. J. Eq. 33, 115 Atl. 69; Bostwick v. Beach, 103 N. Y. 414, 9 N. E. 41 (dictum); Bethell v. McKinney, 164 N. C. 71, 80 S. E. 162; Payne v. Melton, 69 S. C. 370, 48 S. E. 277; Wanamaker v. Brown, 77 S. C. 64, 57 S. E. 665; Wright v. Young, 6 Wis. 127; 70 Am. Dec. 453; O ’Malley v. Miller, 148 Wis. 393, 134 N. W. 840; Stone v. Stanley, 92 N. J. Eq. 310, 112 Atl. 496; Far thing v. Rochelle, 131 N. C. 563, 43 S. E. 1; Elwood v. Smith, 95 N. J. Eq. 195, 122 Atl. 889; People’s Sv. Bank v. Parisette, 68 Ohio St. 450, 67 N. E. 896, 96 Am. St. Rep. 672; Kuratli v. Jackson, 60 Ore. 203, 118 Pac. 192, 1013 Ann. Cas. 1914A, 203, 38 L. R. A. (N. S.) 1195. The rule in Alabama is that specific performance is allowable, but that indemnity, rather than compensation or abatement of price, should be provided. Minge v. Green, 176 Ala. 343, 58 So. 381; Parsons v. Linza, 204 Ala. 549, 87 So. 801. The same rule obtains in Iowa and South Carolina. ‘ ‘ This method,” comments Pomeroy, “is open to the criticism that it renders the title exceedingly unmerchantable for an indefinite period.” (Note to Sec. 462).

Applying these principles to the instant case, we find that the court below erred in holding the plea a good defense to the bill. The plea should have been overruled and the defendants required to answer. The marriage status should not be used as a shield to prevent the enforcement of the just obligation of a man who presents no other excuse to justify his non-performance. If in the further proceedings in the case it should develop, as is indicated by the plea, that the complainant, or his assignor, was chargeable with notice or knowledge of the defendant Miller’s marital status, at or before the execution, of the contract, all that the complainant would then be entitled to secure would be specific performance, by said Miller and his subsequent vendees and grantees, with notice of complainant’s rights by conveyance to complainant of such right, title and interest in the land as said Miller himself had, or as he had conveyed to such subsequent vendees taking from him with notice of complainant’s rights, without any abatement of the purchase price. Or, if it should develop that the complainant was not chargeable with such notice that Miller was married, he would be entitled to like specific perform anee with an abatement from the purchase price of the present worth of the outstanding dower interest.

Reversed for further proceedings pursuant to ábove opinion.

Ellis and Strum, J. J., concur. Whitfield, P. J., and Terrell and Buford, J. J., concur in the opinion.'