Moobe, Judge,
delivered the opinion of the Court:
By chapter 66, section 12, Code p. 449, a married woman may sue and be sued without joining her husband in the suit, where the action concerns her separate property. Mrs- Dickson, as devisee of E. W. Bader, deceased, had the righr to sue without making her husband a party to the cause, as she held the property in controversy, under the will of E. W. Bader, as separate property.
Syllabus 2. Although Mrs. Dickson might have had ample remedy at lawto enforce the $1,916.93 claim against G. A. Bader, yet by filing her bill in chancery a complete and full settlement of the two transactions, the contract of September 24, 1860, between G. A.. Bader and C. A. Neal, and the contract of May 3, 1861, between G. A. Bader and E. W. Bader, could be made without the expense of a multiplicity of suits, and'such was her proper course, as the death of E. W. Bader and G. A. Bader, and the trustee, Joseph Myles, necessitated the making of infants parties to the suit, and also to settle the question, raised by the conveyance of the one hundred and forty-nine acre tract of land by John Z. Neal to Joseph Myles, as trustee, for the benefit of Mrs. C. A. Neal.; The demurrer was therefore properly overruled.
The appellants urge that the court erred in setting aside and rescinding the contract of sale, made by Green A. Bader to Elijah W. Bader, May 3, 1861.
It appears, that on May 3d, 1861, Green A. Bader executed his bond to his brother, Elijah W. Bader, for $1,916.93, in which is incorporated the following: “It is understood, however, that I having sold to the said E. ~W. Bader a tract of land purchased by me of C. A. Neal, for $1,500.00 (or thereabouts), and when I procure a good title from said Neal, and convey the same to E. W. Bader, the amount is to be deducted from this bond.” Green A. Bader signed, sealed and delivered the contract.
The bill sets up this contract, and alleges the land to be the same one hundred and forty-nine, or, as, it is [387]*387sometimes designated, one hundred and fifty acre tract, which Neal contracted to exchange with said Green A.' Rader for his three hundred and fifty acre tract. None of the parties dispute its being the same tract of land.
As said in argument, “there can be no question of the validity of this contract between the original parties, unless it was incapable of execution on account of matters dehors the contract. It is a contract in writing, entered into between parties capable of contracting, and the subject is fully identified.”
Syllabus 4. It is argued, that the contract between the two Raders should be rescinded, because the title to the land at the time of the contract was, and still is, defective. To that it is answered, that the language of the contract itself shows, that the title was not in. Green' A. Rader at the time. The language is : “when I procure a good title from said Neal and convey the same to E. W. Rader,” &o. Elijah therefore was fully aware,* that Green did not have the title, and would have to procure it from Neal. The deposition of McClung states, that “Green and Elijah were both satisfied with the trade, and anxious, that it should stand; they agreed, that they would just let it alone, that neither was losing anything ; ” that Elijah agreed, that he had the brush land in posession then, and that it was worth the interest of the money he was to pay for it.” &c. Such was the expression among others of their feelings at a conference regarding the procuring of the title, showing full knowledge on the part of Elijah as to the true status of the title, and that Green would have to procure it from Neal. Elijah even rented the land or a part of it to Neal. Now under the principles of Goddin v. Vaughn’s ex’r &c. and also Same v. Mason et al., 14 Gratt. 125, citing Pinke v. Curtis, 4 Bro. C. C. 329. I think, the plaintiffs do not come with good grace, under the circumstances, in asking for a rescission of this contract. “Where a purchaser knows, when he makes his contract, that there is a defect in the title, [388]*388and that it will take a considerable time to remove it “or acquires this knowledge after his purchase, and acquiesces in the delay, or proceeds, with knowledge of the defect, in the execution of the contract, he cannot afterwards complain.” Vail v. Nelson, &c. 4 Rand. 478, 481, per Green Judge.
"In the Vail case Judge Green says: “The purchaser knew, that no conveyance could be immediately made ; and that there was no possible means of removing the impediment, but the efflux of time; yet, with this knowledge, he made the purchase, and proceeded to carry it into effect, as far as under existing circumstances it could be done. And indeed there was no time stipulated for making the conveyance.” The Chancellor decreed execution of the contract, and the Court of Appeals affirmed it.
Courts do not sit to overthrow the agreements of parties, but to carry, them into effect, where they are legal, and equitable, and reasonable. 3 Leigh 187.
The principle is well established, that “ it is not essential, that the vendor had at the time of the contract such title and capacity to convey the property, or such means and right to acquire it, as would enable him to fulfill it on his part. It is sufficient, if he is able to convey, when he is required by the contract, or the equities of the case. And where time is not of the essence of the contract, the vendor will be allowed a reasonable time to obtain a perfect title.” Dresel v. Jordon, 104 Mass. 407; Mays v. Swope, 8 Gratt. 46.
Syllabus 5. “ Where a contract respecting real property is, in its nature and circumstances, unobjectionable, it is a matter of course for courts of equity to decree a specific performance of it, as it is for a court of law to give damages for the breach of it. And generally courts of equity will decree a specific performance, when the contract is in writing, and is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed; but not otherwise. Abbott v. L’Hommedieu, 10 W. Va. 677.”
[389]*389“ The exercise of the equity branch of jurisprudence, respecting the rescission and specific performance of con-' tracts, is not a matter of right in either party; but it is a matter of discretion in the court; not indeed an arbitrary, or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion, which governs itself, as far as it may, by general rules and principles but at the same time withholds, or grants, relief according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the’parties.” Id. 677.
Applying these well sustained principles to the case before us, it seems to me, the circumstances of this case require a specific execution of the contract of May 3? 1861, made between G. A. Nader and E. W. Nader. All the parties arc before the court, that are interested in and can be affected by the contract.
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Moobe, Judge,
delivered the opinion of the Court:
By chapter 66, section 12, Code p. 449, a married woman may sue and be sued without joining her husband in the suit, where the action concerns her separate property. Mrs- Dickson, as devisee of E. W. Bader, deceased, had the righr to sue without making her husband a party to the cause, as she held the property in controversy, under the will of E. W. Bader, as separate property.
Syllabus 2. Although Mrs. Dickson might have had ample remedy at lawto enforce the $1,916.93 claim against G. A. Bader, yet by filing her bill in chancery a complete and full settlement of the two transactions, the contract of September 24, 1860, between G. A.. Bader and C. A. Neal, and the contract of May 3, 1861, between G. A. Bader and E. W. Bader, could be made without the expense of a multiplicity of suits, and'such was her proper course, as the death of E. W. Bader and G. A. Bader, and the trustee, Joseph Myles, necessitated the making of infants parties to the suit, and also to settle the question, raised by the conveyance of the one hundred and forty-nine acre tract of land by John Z. Neal to Joseph Myles, as trustee, for the benefit of Mrs. C. A. Neal.; The demurrer was therefore properly overruled.
The appellants urge that the court erred in setting aside and rescinding the contract of sale, made by Green A. Bader to Elijah W. Bader, May 3, 1861.
It appears, that on May 3d, 1861, Green A. Bader executed his bond to his brother, Elijah W. Bader, for $1,916.93, in which is incorporated the following: “It is understood, however, that I having sold to the said E. ~W. Bader a tract of land purchased by me of C. A. Neal, for $1,500.00 (or thereabouts), and when I procure a good title from said Neal, and convey the same to E. W. Bader, the amount is to be deducted from this bond.” Green A. Bader signed, sealed and delivered the contract.
The bill sets up this contract, and alleges the land to be the same one hundred and forty-nine, or, as, it is [387]*387sometimes designated, one hundred and fifty acre tract, which Neal contracted to exchange with said Green A.' Rader for his three hundred and fifty acre tract. None of the parties dispute its being the same tract of land.
As said in argument, “there can be no question of the validity of this contract between the original parties, unless it was incapable of execution on account of matters dehors the contract. It is a contract in writing, entered into between parties capable of contracting, and the subject is fully identified.”
Syllabus 4. It is argued, that the contract between the two Raders should be rescinded, because the title to the land at the time of the contract was, and still is, defective. To that it is answered, that the language of the contract itself shows, that the title was not in. Green' A. Rader at the time. The language is : “when I procure a good title from said Neal and convey the same to E. W. Rader,” &o. Elijah therefore was fully aware,* that Green did not have the title, and would have to procure it from Neal. The deposition of McClung states, that “Green and Elijah were both satisfied with the trade, and anxious, that it should stand; they agreed, that they would just let it alone, that neither was losing anything ; ” that Elijah agreed, that he had the brush land in posession then, and that it was worth the interest of the money he was to pay for it.” &c. Such was the expression among others of their feelings at a conference regarding the procuring of the title, showing full knowledge on the part of Elijah as to the true status of the title, and that Green would have to procure it from Neal. Elijah even rented the land or a part of it to Neal. Now under the principles of Goddin v. Vaughn’s ex’r &c. and also Same v. Mason et al., 14 Gratt. 125, citing Pinke v. Curtis, 4 Bro. C. C. 329. I think, the plaintiffs do not come with good grace, under the circumstances, in asking for a rescission of this contract. “Where a purchaser knows, when he makes his contract, that there is a defect in the title, [388]*388and that it will take a considerable time to remove it “or acquires this knowledge after his purchase, and acquiesces in the delay, or proceeds, with knowledge of the defect, in the execution of the contract, he cannot afterwards complain.” Vail v. Nelson, &c. 4 Rand. 478, 481, per Green Judge.
"In the Vail case Judge Green says: “The purchaser knew, that no conveyance could be immediately made ; and that there was no possible means of removing the impediment, but the efflux of time; yet, with this knowledge, he made the purchase, and proceeded to carry it into effect, as far as under existing circumstances it could be done. And indeed there was no time stipulated for making the conveyance.” The Chancellor decreed execution of the contract, and the Court of Appeals affirmed it.
Courts do not sit to overthrow the agreements of parties, but to carry, them into effect, where they are legal, and equitable, and reasonable. 3 Leigh 187.
The principle is well established, that “ it is not essential, that the vendor had at the time of the contract such title and capacity to convey the property, or such means and right to acquire it, as would enable him to fulfill it on his part. It is sufficient, if he is able to convey, when he is required by the contract, or the equities of the case. And where time is not of the essence of the contract, the vendor will be allowed a reasonable time to obtain a perfect title.” Dresel v. Jordon, 104 Mass. 407; Mays v. Swope, 8 Gratt. 46.
Syllabus 5. “ Where a contract respecting real property is, in its nature and circumstances, unobjectionable, it is a matter of course for courts of equity to decree a specific performance of it, as it is for a court of law to give damages for the breach of it. And generally courts of equity will decree a specific performance, when the contract is in writing, and is certain, and is fair in all its parts, and is for an adequate consideration, and is capable of being performed; but not otherwise. Abbott v. L’Hommedieu, 10 W. Va. 677.”
[389]*389“ The exercise of the equity branch of jurisprudence, respecting the rescission and specific performance of con-' tracts, is not a matter of right in either party; but it is a matter of discretion in the court; not indeed an arbitrary, or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion, which governs itself, as far as it may, by general rules and principles but at the same time withholds, or grants, relief according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the’parties.” Id. 677.
Applying these well sustained principles to the case before us, it seems to me, the circumstances of this case require a specific execution of the contract of May 3? 1861, made between G. A. Nader and E. W. Nader. All the parties arc before the court, that are interested in and can be affected by the contract. If its specific! execution is enforced, it will be simply carrying out the wish of the original contractors, and furnishing that measure of exact justice, between the parties now interested, which those rules and principles, just cited, most equitably demand. If it is rescinded, it violates those principles, imposes a burden on the estate of G. A. Nader never intended by the original contractors, and not now necessary, but oppressive and prejudicial to the interests of James and Calvin.
Syllabus 3. 1 As to what is called the repudiation or abandonment by Neal of the contract of September 24, 1860, if the truth can be deduced from the vague, confused and conflicting testimony, the plaintiffs do not stand in a favorable light, not in that light of fair dealing which equity demands. On the contrary it places Neal in the attitude of at least wishing and aiming to be just. It shows a desire on his part, not to abandon the contract, but to carry it out in good faith, if capable of being carried out, and a willingness to peaceably abandon it, if it was [390]*390not susceptible of legal execution. That it is capable of ~ specific execution, the bill and answers and the depositions place beyond the possibility of doubt.
Neal and family take no advantage of the conveyance, made tó Myles for the benefit of Mrs. Neal and children by .John Z. Neal, and claim none, but all join in an honest effort to convey the land according to the contract, and appeal to the court for its aid in that respect.
The answers of Neal, his wife, and all the defendants, and the deposition of John Z. Neal, show that the land thus conveyed was not only paid for by Neal, but was conveyed voluntarily to Myles, so far as Neal was concerned, and that too without his concurrence. The purchase of the land from Neal by Rader was bona fide, for valuable consideration; and Rader could under the. circumstances have compelled a conveyance to himself.
Hence, we may unite in the quaere made by the appellants : “ By what authority could Neal and the plaintiffs, whether actuated by fraudulent or honest motives, good or bad faith, abandon and annul a contract, which they had not made, to the prejudice of those whoso rights it affected and without their knowledge or consent ?”
Syllabus 3. II. Thus viewing the cause, 1 am of opinion, that the court erred in its decree of November 27, 1874, in so far as it rescinded the contract of sale of said “ brush land,” made by Green A. Rader, deceased, to Elijah W. Rader, deceased, by writing obligatory, dated 3d May, 1860; and as that is the only part of said decree appealed from, and as there are other matters adjudicated by said decree, which will require the further action of said circuit court, the said decree, in so far as it rescinds the said contract for said sale of the brush land, should be reversed with costs, and the cause be remanded to said circuit court, to be proceeded in according to the [391]*391principies indicated by this opinion, and further according to the principles governing courts of equity in such eases.
The other Judges concurred.
JUDGMENT REVERSED. CAUSE REMANDED.