#### Van Camp, Respondent, vs. Patrick, Appellant.

*October 22*

November *16, 1920.*

*Specific performance: Contract to convey land: Death of vendor: Deed from heir: Form.*

Under sec. 3501, Stats., empowering the court, in an action for the specific performance of a written contract to convey land made by a person since deceased, to require the executor or administrator “to convey the estate” in like manner as decedent ought if living, or in certain circumstances to require the heirs instead of the executor or administrator “to convey the estate,” or to join the executor or administrator in the conveyance, or itself by its judgment to pass the title to the land, it is not intended that a deed with usual covenants of warranty be required of an heir.

Appeal from a judgment of the circuit court for Mari-nette county: W. B. Quinlan, Circuit Judge.

*Reversed.*

Action to enforce specific performance of a land contract. Lewis S. Patrick, in his lifetime, executed to plaintiff a certain land contract by which he agreed to convey to her, upon payment of the sums of money therein mentioned, the real estate therein described by “a good and sufficient deed, in fee simple, free and clear of all legal liens and in-cumbrances, except the taxes herein agreed to be paid by the party of the second part.” Before all the instalments of the purchase money were paid, Patrick died, leaving his widow, *Sarah W. Patrick,*the defendant, his sole heir at law, to whom the payments of the purchase money were made after Patrick’s death. Upon the completion of the payments of *2the purchase money the defendant executed and tendered to the plaintiff a deed of the premises, containing the covenant “that the said premises are free and clear of all legal liens and incumbrances except the taxes, special or general, which have been assessed on said premises since the 1st day of January, 1911, and also all such as may have been or be thereafter assessed thereon.” The taxes referred to were assumed by plaintiff by the terms and conditions of the land contract. There were no other covenants in the deed tendered which are usually found in an ordinary warranty deed. The plaintiff refused to accept the deed tendered, claiming that she was entitled to a deed containing full covenants of warranty, and brought this action to compel the execution on the part of the defendant of such a deed.

The case was tried by the court. Findings of fact and conclusions of law were filed by which it was found that the plaintiff is entitled to a deed containing the usual and proper covenants, which are (1) that the grantor is lawfully seised; (2) that he has good right to convey; (3) that the land is free from incumbrances; (4) that the grantee shall quietly enjoy; and (5) that the grantor will warrant and defend the title against all lawful claims. From a judgment rendered in favor of the plaintiff upon such findings the defendant appealed.

The cause was submitted for the appellant on the brief of *Eastman & Goldman,*attorneys, and *Henry T. Scudder,*of counsel, all of Marinette, and for the respondent on that of *G. B. Evans*of Marinette.

Owen, J.

There is much discussion in the briefs as to whether the clause in the contract by which Patrick agreed to convey the premises to the plaintiff by a “good and sufficient deed, in fee simple, free and clear of all liens and in-cumbrances,” etc., entitles the plaintiff to a deed containing the usual covenants of warranty, as found by the court. It is not necessary for us to determine whether Patrick, if liv*3ing, could be compelled to execute a deed containing the covenants required by the judgment in this case. This is not an action against Patrick. It is an action against his widow and sole heir at law. It is brought under sec. 3501, Stats., which provides:

> “Whenever any person who is bound by a contract in writing to convey any real estate or interest therein shall die before making the conveyance the person entitled thereto, or if he be dead then any person who would have been entitled to the estate under him as heir, devisee or otherwise, in case the conveyance had been made according to the terms of the contract, or the executor or administrator of such deceased person, for the benefit of the person so entitled, may maintain an action in the circuit court to enforce a specific performance of the contract by the heirs, devisees or the executor or administrator of such deceased person who made the contract. If in such action it shall appear that the plaintiff is entitled to have a conveyance of such real estate the court may require such executor or administrator to convey the estate in like manner as the deceased person might or ought to have done if living; and if the heirs or devisees of such deceased person or any of them shall be within the state and made parties to such action the court may require them, instead of the executor or administrator, to convey the estate or may require them to join with the executor or administrator in such conveyance; or the court may, by its judgment, pass the title to such real estate to the plaintiff without any conveyance; and every conveyance or judgment so made shall be effectual to pass the estate contracted for as fully as if the contracting party were still living and then executed the conveyance.”

This section gives the court power to “require such executor or administrator *to convey the estate*in like manner as the deceased might or ought to have done if living,” and under certain circumstances to require the heirs, “instead of the executor or administrator, *to convey the estate,”'*or to “join with the executor or administrator, *in such conveyance,”*or “the court may, by its judgment, pass the title to such real estate to the plaintiff without any conveyance.” *4Manifestly the purpose of this statute was to bring about the *conveyance of the estate.*Such conveyance “shall be effectual to pass the estate contracted for as fully as if the contracting party were still living and then executed the conveyance.” There is nothing in the statute to indicate a legislative intent that any one, whether it be the administrator, executor, or heirs, should assume the personal responsibility arising from the covenants required by the judgment of the court, and certainly a conveyance by the court carries with it no such covenants. It is plain that the law could not compel the assumption of such obligations by any one. Certainly the executor or administrator could not be compelled to assume such a personal obligation, and we know no theory of law by which a man can cast upon his heirs or devisees obligations to perform his covenants to their detriment. They cannot be compelled to pay his debts out of their own property.

In this case the widow received but a small portion of the purchase price. In case of a breach of any of the covenants which the court required to be inserted in the deed, the damages might be many times greater than the amount she received as a part of the purchase price and greater, than the amount she received from the entire estate. If she signed a deed containing the covenants required by the judgment of the court, she would thereby pledge her personal estate to the discharge of her husband’s obligations. This the law cannot compel. It amounts to the taking of property without due process of law. The statute does not attempt to do it. It merely affords a method by which the estate of the deceased may be transferred to the purchaser. Whether the deed be executed by the. administrator, the executor, the heir, or the estate transferred by the court, the effect is “to pass the estate contracted for as fully as if the contracting party were still living and then executed the conveyance.” If the deceased had a perfect title, that title is conveyed. If he did not have a perfect or marketable title, the purchaser is *5not obliged to accept the conveyance, and he has the same remedies' against his estate for 'breach "of the' contract as would be available against him if he were -living.. .

The court was in error in rendering judgment requiring the defendant to execute a deed containing the covenants therein required. The deed tendered by her fully discharged her obligations in the premises. The complaint of the plaintiff should have been dismissed.

• *By the Court.*— Judgment reversed, and cause remanded with instructions to dismiss the plaintiff’s complaint.