#### *M’Cann v. Janes.

August, 1842,

Lewisburg.

(Absent Bbooke. J.)

;Specific Performance*—Contract to Convey Wife’s *149Land, †-A husband sells land In which his wife has an estate in fee, and executes a bond to the purchaser, conditioned that he and his wife will make a deed to the purchaser within a specified time. After that time the husband states that his wife has declined joining him in the deed, and has forbidden him to convey his estate, and he refuses to make any conveyance. Thereupon a bill is filed by the purchaser against the husband, stating that there are children of the marriage, claiming that the husband is therefore entitled to a life estate, and praying that he may 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 his wife to unite with him in the conveyance. The bill being demurred to, the circuit court sustains the demurrer and dismisses the bill; and this decree is affirmed.

John Ross having an estate of inheritance in a tract of land in the county of Harrison, and dying intestate, the same descended to hi« children, ten in number, of whom one was Patsy. She, after the death of her father, married Joseph Janes, and there were children of the marriage. James M’Cann purchased, for the sum of 110 dollars, so much of the laud and the rents thereof as Janes and wife were entitled to ; and Janes executed a bond to him in the penal sum of 200 dollars, with condition that Janes and his wife should make him a good deed for the same within two years from the date thereof. After the two years had expired, M’Cann exhibited a bill in the circuit court of Harrison, setting forth, that since the expiration of the two years, he had frequently applied to Janes to have a deed made by himself and his wile according to the bond, and Janes had promised him it should be done; but after those promises, *Janes stated that his wife would not join him in a deed : that by the marriage and the birth of children, Janes was at all events entitled to a life estate ; but he said that his wife had forbidden him to convey that, and he refused to convey it. The bill prayed, that Janes 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 Janes, for failing to procure his wife to unite with him in the conveyance ; and that the court should grant such other, further and general relief ■ in the premises, as to equity appertains.

The cause coming on to be heard upon the bill and a demurrer thereto, Duncan, J., delivered the following opinion :

“If this were a bill for a specific execution of the entire contract, that is, to obtain a decree for conveyance of the wife’s estate, then my judgment would incline to the opinion expressed by judge Story in his excellent commentaries on equity, vol. 2, p. 38--40. See also Sugden on Vendors, p. 152 (9th Dondon edi. p. 198, 9). To grant such a prayer would, to my mind, be undertaking to enforce a contract against the policy of the law, as it would tend to a violation of conjugal duties, and it would be ‘offering a premium to the husband to be .ungenerous as well as unjust to his wife.’ Weighty authorities exist, however, shewing that the courts have thought otherwise, and that upon a contract of this kind, the husband might be thrown into jail until the affections of the wife could be so worked upon as to induce her to surrender perhaps the only means that remained to her to save herself and children from penury. I confess, that unless borne down by the weight of authorities, I should decide differently.* The *plaintift' has relieved the court from a more full examination of the ques*150tion, by shaping his cause differently. He seeks for a partial execution of the contract, and a right to resort to law to recover compensation for the residue. Can this be done ? There are indeed many cases decided in Virginia, where a vendee has obtained a decree for a part’of the land he purchased; for example, where there was a small deficiency in the quantity, but yet the vendor was capable of giving a title to what was the substantial inducement to the contract, the deficiency lying in compensation. There are cases also in which a vendee has obtained a decree for a conveyance from a husband who had bound himself to obtain a relinquishment of his wife’s dower. But in such cases the vendee has gotten substantially what he purchased, to wit, the fee simple title of the husband. This, it is true, the vendee *has taken subject to a contingent right of dower ; but he has gotten also the husband’s covenant of warranty for his protection against the claim of dower, and as he purchased with a knowledge of the contingent right of the wife, it is no great hardship that he should be compelled to take the husband’s deed alone, with . a risk of the possibility of his wife’s having an estate in dower, and be made to rely for compensation in that event, upon his covenant of title. The question may be asked, whether, if the vendee be willing to take the title of the husband such as it is, the court ought not to decree it to him ? As a general rule, I suppose that equity will decree specific performance so far as the vendor is capable of performing his contract, if the vendee be willing to receive the same. See Sugden on Vendors, p. 159 (9th London edi. p. 209). But I apprehend that the vendee must take the decree of equity *as full satisfaction, or not at all. He cannot be pprmitted to come into equity for part satisfaction, and resort to a court of law for further satisfaction. But even in a case in which the vendee is willing to take from the vendor a less egtate than he bargained for, it must appear that the vendor has a lawful right to convey such less estate. Thus the question arises, whether the vendee can have a decree for a conveyance by the husband of his life estate in the lands of the wife, during her life ? A tenancy by the curtesy is only consummated by the death of the wife ; and I apprehend that the husband has only a limited usufructuary right during the life of his wife, a right to receive the rents and issues. His right to lease his wife’s lands, without her joining in the lease, is doubted : See Lomax’s Digest vol. 2, p. 90. I am therefore of opinion that the demurrer to the bill must be sustained, on two grounds ; to wit, 1. That any decree which equity can render must be in full satisfaction of the plaintiff’s claim; it cannot sustain a bill for a specific performance in part, with a right to resort to a court of law for the recovery of damages for the residue : and 2dly,- That a husband cannot be decreed to convey a life .estate in his wife’s lands, during her life. The plaintiff suggested, that although the court might refuse to give a decree for a specific performance of the contract, it might rescind the contract, under the prayer for general relief. I think otherwise. The prayer for general relief in addition to a prayer for specific relief, will only authorize such a decree as is consistent with the specific relief sought.”

In conformity with this opinion, the circuit court, sustaining the demurrer, decreed that the bill of the plaintiff be dismissed, and that the plaintiff pay to the defendant his costs.

On the petition of the plaintiff, an appeal was allowed.

*The cause was submitted without argument, by William A. Harrison for the appellant, and George H. Lee for the appellee.

*

Specific Performance—Title.—A party is not enti- ¶ ¡ ] j tled to a specific execution of a contract for the sale of land unless be can make a good title thereto. Middleton v. Selby, 19 W. Va. 174; Linkous v. Cooper, 2 W. Va. 70, both citing the principal case.

*See foot-note*to Clarke v. Reins, 12 Gratt. 99, and *149monographic *note*on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.

The principal case is cited in Clarke v. Reins, 12 Gratt 108.

Samet—Contract to Convey Wife’s Land—Mutuality. —The principal case is cited in Graybill v. Brugh, 89 Va. 899, 17 S. E. Rep. 560. See Chilhowie Iron Co., v. Gardiner, 79 Va. 305.

See generally, monographic *note*on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.

PER CURIAM.

Decree affirmed.