Majority
p. 359Louise D. Maas, Respondent, v. Frederick Morgenthaler and Consumers’ Brewing Company of Brooklyn, L. I., Appellants. Second Department, January 14, 1910.
Headnote
Specific performance — party — wife of vendor not joining in contract — deduction of dower rights from purchase price — form oí decree where wife did not join in contract.Where the wife of a vendor of lands did not join in the contract of sale, she is not a proper party defendant to a suit for specific performance.
In a suit against a husband, his wife, who did not join in the contract of sale, cannot be required to perform specifically! nor can her dower rights be determined adversely to her, nor can she be compelled to accept, money in lieu thereof.
It is no defense to a suit against a husband for specific performance that his wife did not join in the contract and is not a party to the action, for if she refuse to join in the conveyance the vendee may elect to take the premises subject to her dower with a deduction from the purchase price óf a sum equivalent to. the gross value of the-dower.
Under such circumstances the decree should provide that on the failure of the defendant to deliver a deed in fee simple absolute, as required by the contract, by reason of the refusal of his wife to.join therein, the vendee may reject the purchase in toto; or should require the vendor to convey his interest in fee, the ■ vendee to have an abatement in the purchase price equivalent to the gross value of the dower right; or provide that the vendee may amend her pleading so as to recover damages, to be declared a lien; or permit a discontinuance of the suit, without costs or prejudice to an action for damages.
Appeal by the defendants, Frederick Morgenthaler- and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 6th day of April, 1909, upon the decision of the court rendered after a trial at the Queens County Special Term.
William J. Courtney, for the appellants.
J. FramMin Tausoh, for the respondent.
This is an ^appeal by the defendants from a judgment of the Special Term that decrees specific performance of a contract of the defendant Morgenthaler to convey real estate and that sets aside his conveyance thereof to the other defendant. The judgment is
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warranted by the facts found, and the exceptions to the rulings of the court- are not of moment. The appellants make objection in this court for the first time that the court could not decree specific performance because the contract of sale was executed by the owner of the premises alone, and yet he had a wife. His wife was not a ■ party to this action. , She was not a proper party to it. (Richmond v. Robinson, 12 Mich. 193 ; Venator v. Swenson, 100 Iowa, 295 .) Specific performance, could not be enforced against her in. this action. Her dower rights cannot be determined in this .action adversely to her (Dixon v. Rice, 16 Hun, 422 , 425), and she cannot be compelled to accept a money compensation in lieu thereof. (Bostwick v. Beach, 103 N. Y. 414 ; Roos v. Lockwood, 59 Hun, 181 .) The judgment herein requires the defendant Morgenthaler to execute a deed in absolute fee simple. It does not appear that, his wife has refused to join in the execution thereof, and we cannot surmise that-she will refuse. She must decide that question for herself, and we cannot coerce her, as. did the old Court of Chancery, by imprisonment of the husband in jail until his wife yielded. (See 2 Story Eq. Juris. [13th ed.] § 731 et seq.) Story in his Equity Jurisprudence (13th ed. § 735) says: “ Where indeed there is no pretence to say that the wife is not ready and willing to consent to the act, and that defence 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 the 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 where 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.” In Pulliam v. Pulliam’s Heirs ( 4 Dana, 123 ) the court allowed a reasonable time for determination by the necessary party to a conveyance. If she does refuse, yet the plaintiff may elect to take the premises subject to the dower right with a deduction from the purchase money of a sum equivalent to the gross value of that right. (Bostwick v. Beach, supra.)
The decree should, therefore, be modified so as to provide that
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upon the failure of the defendant to deliver the deed required from him because of the refusal of his wife to join therein, the plaintiff may, within ten days thereafter, elect to reject the purchase in toto, or to require the defendant to tender his deed, and of the character now required in the said judgment, and effective in all respects save as to the dower right of his 'wife, whereupon the plaintiff may have an abatement in the purchase price equivalent to gross value of the dower right, or that the plaintiff may apply to the Special Term for such amendment to her pleading as may permit her to recover damages in this action (See O'Beirne v. Allegheny & Kinzua R. R. Co., 151 N. Y. 382 ; Reynolds v. Wynne, 127 App. Div. 69 ; Wilder v. Ranney, 16 Wkly. Dig. 478 ), which, I may observe, may be declared a lien (Price v. Palmer, 23 Hun, 504 ), or to discontinue this action, without costs, an.d without prejudice to bringing another action for damages, and as so modified the judgment must be affirmed, with costs.
Woodward, Burr, Thomas and Rich, JJ., concurred.
Judgment modified in accordance with opinion, and as so modified affirmed, with costs.
Cases cited
- Bostwick v. Beach 103 N. Y. 414 p. 360