Mr. Justice Magruder
delivered the opinion of the Court:
First, it is claimed on the part of the appellees, that the demurrer to the bill was properly sustained, upon the alleged ground, that the provisions of the contract described in it are not binding upon all the parties against whom it is sought to specifically enforce it. This contention is based upon the fact, that the contract does not mention or in any way refer to ¡Nellie F. P. Jones and Ann Auguste Roberts, although it is signed by them. As they are not referred to in the body of the agreement, it is said that their signatures thereto are mere surplusage.
The courts have passed upon a number of cases, where the deed or contract of a husband has been signed by his wife without mention of her name in the instrument itself. It has been held in this State, that, where the wife of a grantor in a deed signs the deed with him, her dower is thereby relinquished, although the body of the deed does not describe her as a grantor, or name her or her dower in any mode whatever. (Johnson v. Montgomery, 51 Ill. 185; Miller v. Shaw, 103 Ill. 277; Yocum v. Lovell, 111 Ill. 212; Schley v. Pullman Palace Car Co., 25 Fed. Rep. 890; Bute v. Kneale, 109 Ill. 652). The same is true of the estate of homestead as well as of the estate of dower, and of deeds where the wife is grantor and the husband signs with her without being named in the deed. (Idem.) The Illinois cases, however, depend upon particular statutory provisions, which are construed as giving to the signature or acknowledgment of the wife or husband the effect above stated. In other States it has been held, that a deed which is merely signed by a wife, but does not contain apt words of grant on her part, does not pass her dower. (Bruce v. Wood, 1 Met. 542; Leavitt v. Lamprey, 13 Pick. 382; Lothrop v. Foster, 51 Me. 367; Cox v. Wells, 7 Blackf. 410; Davis v. Bartholomew, 3 Ind. 485; McFarland v. Febiger, 7 Ohio, 337). These cases, decided in other States, were shown in Johnson v. Montgomery, supra, to be inapplicable under the statutes of Illinois.
But we have been referred to no authority, which discusses the effect of merely signing a deed or contract where the relation of husband and wife does not exist between the grantor or party named in the instrument, and the party signing the same but not named therein. It would seem, however, upon reason and principle, that, where a third person merely annexes his name to a contract which in the body of it does not mention him, and which is in itself a complete contract between other parties who sign it and are mentioned in it, such third person does not thereby become a party to the efficient and operative parts of the contract. His signature in such case can only be regarded as an expression of his assent to the act of the parties in making the contract, and may perhaps operate as an estoppel against his assertion in the future of an adverse interest in the subject-matter of the agreement. We, therefore, think that the bill misstates the effect of the signatures of Nellie F. P. Jones and Ann Auguste Roberts to the contract in alleging that they thereby agreed to sell the lot and covenanted to convey it by a good and sufficient warranty deed. The assumption, that they signed the contract as joint vendors with George W. Roberts, is no more justified by anything which appears upon the face of the instrument, than the assumption that they signed their names as joint purchasers with Lancaster.
There is a want, of mutuality in the contract as between Lancaster on the one side and said Nellie and Ann on the other. The latter could not enforce the contract against the former. “ Whenever * * * the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.” (Fry on Spec. Perf.—3 ed.—sec. 440)
But, while the demurrer was properly sustained as to said Nellie and Ann, it need not necessarily have been sustained as to George W. Roberts. “Where there are several defendants, if they all join in one demurrer to a bill, the demurrer may be good and be allowed as to one of the defendants, and be bad and disallowed as to the other defendants; for the defence may be good as to one person, and be wholly inapplicable to another.” (Story’s Eq. Plead., sec. 445). If, therefore, the bill is such, that the complainant was entitled to have an answer to it from George W. Roberts, it was error to sustain the demurrer as to him.
Second, it is claimed on behalf of the appellees that the demurrer to the bill was properly sustained upon the alleged ground that the only remedy, which the purchaser named in the contract can resort to, is a suit at law for the amount of the cash deposit made at the time, of the execution of the agreement. This contention is based upon that clause in the contract which provides, that “ in case the title upon examination is found materially defective within ten days after said abstract is furnished, then unless the material defects be cured within sixty days after written notice thereof, the said earnest money shall be refunded and the contract is to become inoperative.”
A condition in a contract of sale, by which the contract is to be void in case the vendor cannot deduce a good title, is to be taken most strongly against the vendor, because he alone is able to judge of the necessity or propriety of making the condition before he offers the property for sale. (Greaves v. Wilson, 25 Beav. 290; Page v. Adams, 4 Beav. 269). Such a condition gives an option, not to the vendor, but to the purchaser, to avoid the contract for failure to deduce a good title. (Roberts v. Wyatt, 2 Taunt. 268). In the recent case of Hale v. Cravener, 128 Ill. 408, the contract contained the following provision: “ In case the abstract of title to be furnished as aforesaid does not show a good title, as herein stated, then the $500.00 this date paid thereon shall be returned to said first party, and this contract determined; ” and we there held, that said provision was designed for the benefit of the purchaser and could not be taken advantage of by the vendor, because the latter was presumed to know the title, while the former did not know it. If it were otherwise, a vendor might purposely neglect to furnish a good title, and then rely upon his own default, in order to accomplish a rescission of the contract by merely returning the earnest money.
It is a familiar rule, that the vendor cannot force the purchaser to pay his money and receive a defective title. (Wallace v. McLaughlin, 51 Ill. 53; King v. Knapp, 59 N. Y. 462; Hepburn v. Auld, 5 Cranch, 262). But the purchaser may elect to take a title which is defective. (Harding v. Parshall, 56 Ill. 219; Hoyt v. Tuxbury, 70 Ill. 331; Hale v. Cravener, supra; 3 Pom. Eq. Jur., sec. 1405, and cases referred to in notes).
In the case at bar, the title was found to be defective within ten days after the abstract was furnished, and notice of such defects was given to the vendor, who was allowed by the contract sixty days after such notice for the purpose of curing the defects. At the end of the sixty days the vendor, Roberts, had not cleared the title by removing the incumbrances and cancelling the judgment.
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Mr. Justice Magruder
delivered the opinion of the Court:
First, it is claimed on the part of the appellees, that the demurrer to the bill was properly sustained, upon the alleged ground, that the provisions of the contract described in it are not binding upon all the parties against whom it is sought to specifically enforce it. This contention is based upon the fact, that the contract does not mention or in any way refer to ¡Nellie F. P. Jones and Ann Auguste Roberts, although it is signed by them. As they are not referred to in the body of the agreement, it is said that their signatures thereto are mere surplusage.
The courts have passed upon a number of cases, where the deed or contract of a husband has been signed by his wife without mention of her name in the instrument itself. It has been held in this State, that, where the wife of a grantor in a deed signs the deed with him, her dower is thereby relinquished, although the body of the deed does not describe her as a grantor, or name her or her dower in any mode whatever. (Johnson v. Montgomery, 51 Ill. 185; Miller v. Shaw, 103 Ill. 277; Yocum v. Lovell, 111 Ill. 212; Schley v. Pullman Palace Car Co., 25 Fed. Rep. 890; Bute v. Kneale, 109 Ill. 652). The same is true of the estate of homestead as well as of the estate of dower, and of deeds where the wife is grantor and the husband signs with her without being named in the deed. (Idem.) The Illinois cases, however, depend upon particular statutory provisions, which are construed as giving to the signature or acknowledgment of the wife or husband the effect above stated. In other States it has been held, that a deed which is merely signed by a wife, but does not contain apt words of grant on her part, does not pass her dower. (Bruce v. Wood, 1 Met. 542; Leavitt v. Lamprey, 13 Pick. 382; Lothrop v. Foster, 51 Me. 367; Cox v. Wells, 7 Blackf. 410; Davis v. Bartholomew, 3 Ind. 485; McFarland v. Febiger, 7 Ohio, 337). These cases, decided in other States, were shown in Johnson v. Montgomery, supra, to be inapplicable under the statutes of Illinois.
But we have been referred to no authority, which discusses the effect of merely signing a deed or contract where the relation of husband and wife does not exist between the grantor or party named in the instrument, and the party signing the same but not named therein. It would seem, however, upon reason and principle, that, where a third person merely annexes his name to a contract which in the body of it does not mention him, and which is in itself a complete contract between other parties who sign it and are mentioned in it, such third person does not thereby become a party to the efficient and operative parts of the contract. His signature in such case can only be regarded as an expression of his assent to the act of the parties in making the contract, and may perhaps operate as an estoppel against his assertion in the future of an adverse interest in the subject-matter of the agreement. We, therefore, think that the bill misstates the effect of the signatures of Nellie F. P. Jones and Ann Auguste Roberts to the contract in alleging that they thereby agreed to sell the lot and covenanted to convey it by a good and sufficient warranty deed. The assumption, that they signed the contract as joint vendors with George W. Roberts, is no more justified by anything which appears upon the face of the instrument, than the assumption that they signed their names as joint purchasers with Lancaster.
There is a want, of mutuality in the contract as between Lancaster on the one side and said Nellie and Ann on the other. The latter could not enforce the contract against the former. “ Whenever * * * the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.” (Fry on Spec. Perf.—3 ed.—sec. 440)
But, while the demurrer was properly sustained as to said Nellie and Ann, it need not necessarily have been sustained as to George W. Roberts. “Where there are several defendants, if they all join in one demurrer to a bill, the demurrer may be good and be allowed as to one of the defendants, and be bad and disallowed as to the other defendants; for the defence may be good as to one person, and be wholly inapplicable to another.” (Story’s Eq. Plead., sec. 445). If, therefore, the bill is such, that the complainant was entitled to have an answer to it from George W. Roberts, it was error to sustain the demurrer as to him.
Second, it is claimed on behalf of the appellees that the demurrer to the bill was properly sustained upon the alleged ground that the only remedy, which the purchaser named in the contract can resort to, is a suit at law for the amount of the cash deposit made at the time, of the execution of the agreement. This contention is based upon that clause in the contract which provides, that “ in case the title upon examination is found materially defective within ten days after said abstract is furnished, then unless the material defects be cured within sixty days after written notice thereof, the said earnest money shall be refunded and the contract is to become inoperative.”
A condition in a contract of sale, by which the contract is to be void in case the vendor cannot deduce a good title, is to be taken most strongly against the vendor, because he alone is able to judge of the necessity or propriety of making the condition before he offers the property for sale. (Greaves v. Wilson, 25 Beav. 290; Page v. Adams, 4 Beav. 269). Such a condition gives an option, not to the vendor, but to the purchaser, to avoid the contract for failure to deduce a good title. (Roberts v. Wyatt, 2 Taunt. 268). In the recent case of Hale v. Cravener, 128 Ill. 408, the contract contained the following provision: “ In case the abstract of title to be furnished as aforesaid does not show a good title, as herein stated, then the $500.00 this date paid thereon shall be returned to said first party, and this contract determined; ” and we there held, that said provision was designed for the benefit of the purchaser and could not be taken advantage of by the vendor, because the latter was presumed to know the title, while the former did not know it. If it were otherwise, a vendor might purposely neglect to furnish a good title, and then rely upon his own default, in order to accomplish a rescission of the contract by merely returning the earnest money.
It is a familiar rule, that the vendor cannot force the purchaser to pay his money and receive a defective title. (Wallace v. McLaughlin, 51 Ill. 53; King v. Knapp, 59 N. Y. 462; Hepburn v. Auld, 5 Cranch, 262). But the purchaser may elect to take a title which is defective. (Harding v. Parshall, 56 Ill. 219; Hoyt v. Tuxbury, 70 Ill. 331; Hale v. Cravener, supra; 3 Pom. Eq. Jur., sec. 1405, and cases referred to in notes).
In the case at bar, the title was found to be defective within ten days after the abstract was furnished, and notice of such defects was given to the vendor, who was allowed by the contract sixty days after such notice for the purpose of curing the defects. At the end of the sixty days the vendor, Roberts, had not cleared the title by removing the incumbrances and cancelling the judgment. Therefore, the purchaser, Lancaster, had the right at that time either to treat the contract as inoperative and demand the return of his cash payment, or to tender the balance of the purchase money and demand a deed of the premises in the exercise of his legal option to take the defective title disclosed by the abstract. There are no allegations in the bill, that he did either, but the bill alleges that Roberts promised from time to time after the lapse of the sixty days to cure the defects in the title, and that Lancaster was always ready and willing to perform his part of the contract. The bill being demurred to, these allegations must be assumed to be true. If Roberts thus promised to cure the defects and Lancaster accepted his promise to do so, there was substantially an arrangement between the parties for an extension of the time fixed by the contract for the curing of the defective title. This arrangement involved a waiver on the part of Roberts of the requirement that Lancaster should either take back the earnest money, or receive the defective title, at the expiration of the sixty days. Although time be made of the essence of the contract, yet the condition may be waived. (1 Sugden on Vendors—Perkins’ 8th Am. ed.—page 417; Dennis v. McCagg, 32 Ill. 429).
The vendor here has not been in a position to compel a specific performance by the vendee. The latter could not be compelled to pay for a title clouded by encumbrances. Unless the vendor can sustain a bill for specific performance, he cannot rescind the contract. (Wallace v. McLaughlin, supra). Even if Roberts had the right to tender a deed and offer to return the earnest money, he did not do so. His failure to make such tender and offer is implied from the continued promises to cure the defects in the title, as such promises are alleged in the bill. It would be inequitable to allow the vendor to retain the earnest money, if the purchaser was ready and willing to perform and was prevented from taking steps to enforce performance against the vendor by the latter’s promises to cure the defects in the title. (Snyder v. Spaulding, 57 Ill. 480).
We do not think, that the bill is demurrable because it asks for compensation or for an abatement of the amount of the encumbrances out of the purchase-money. When the answer and the testimony are before the court, it may not be possible or advisable to grant such compensation, but equity has the power to allow it. In suits by the purchaser for a specific performance where the vendor is unable to make complete title, “the general rule (for it is not universal), in all such cases is, that the purchaser, if he chooses, is entitled to have the contract specifically performed as far as the vendor can perform it, and to have an abatement out of the- purchase money or compensation for any deficiency in the title, quantity, quality, description or other matters touching the estate.” (2 Story’s Eq. Jur.—13th ed.—sec. 779; Woodbury v. Luddy, 14 Allen, 1; Gerome v. Scudder, 2 Rob. (N. Y.) 169; Wallace v. McLaughlin, supra; Snyder v. Spaulding, supra; Lombard v. Chicago Sinai Congregation, 64 Ill. 485). We are of the opinion that Lancaster was entitled to file the bill, and cannot be limited to an action at law for the earnest money.
Third, it is said that the demurrer to the bill was properly sustained upon the alleged ground that it shows laches upon the part of the purchaser. If it should turn out to be true when the facts are developed, that the purchaser was induced to postpone action under the contract by promises to cure the title made by the vendor from time to time during the period between notice of the defects and the filing of the original bill, then the purchaser was excusable for not sooner filing his bill for specific performance. While the allegations are not as full and definite as they should have been both in regard to the causes of the delay in beginning the suit and in regard to the other matters herein considered, yet we think that the bill shows sufficient ground for relief to have justified the court in overruling the demurrer as to George W. Roberts and requiring him to answer.
We cannot see that the delay in the progress of the suit after the demurrer to the original bill was overruled and leave was given to amend it, was due any more to the fault of the complainant than to the fault of the defendants. There is no specific relief asked for in the amended bill, which could not have been granted under the general prayer for relief in the original bill. The original bill, as well as the amended bill, was for the specific performance of the contract. The amended bill was in no sense a new suit, and the delay in filing it cannot be charged as laches under the circumstances of this case.
The decree of the Superior Court in sustaining the demurrer and dismissing the bill is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and, remanded.