#### O'Malley and others, Respondents, vs. Miller and wife, Appellants.

*February 1*

February *20, 1912.*

*Vendor and purchaser of land: Specific performance: Parties: Wife refusing to join in deed: Dower: Deduction from price: Pleading: Demurrer: Tender.*

1. Although the wife of the owner of land was not a party to a contract for the sale thereof she is a proper party defendant to an action hy the vendee for specific performance, because, having an inchoate right of dower, her interest is adverse to the plaintiff within the meaning of sec. 2603, Stats. (1898).

2. The vendee in such a case is entitled, if the wife refuses to join in a deed to him, to retain from the purchase price a sum equal to the value of the contingent dower interest; and the wife ought to have her day in court on the question of such value.

3. A proper party defendant cannot successfully demur to the complaint on the ground that he is not a necessary party.

4. Tender of the purchase price of land *held*to he sufficiently pleaded.

*394Appeal from an order of tbe circuit court for St. Croix county: E. W. Heláis, Circuit Judge.

*Affirmed.*

Tbe cause was submitted for tbe appellants on tbe brief of *Jesse 8. Field,*and for tbe respondents on that of *White & Bkogmo.*

Vinje, J.

This is an action for tbe specific performance of a contract for tbe sale of land, and for damages in case title cannot be made good or a conveyance decreed. Plaintiffs joined defendant’s wife, wbo was not a party to tbe contract of sale. Tbe only allegation in tbe complaint touching ber is as follows: “That said defendant *Eliza Miller*is tbe wife of the said defendant *H. 8. Miller*and as such claims a right of dower in said premises.” ' Each defendant entered a separate general demurrer. On behalf of tbe wife it is urged that tbe complaint fails to set forth any facts connecting ber with tbe subject matter of tbe suit and therefore she is neither a necessary nor a proper party. Being tbe wife of tbe defendant wbo is tbe owner of tbe land in controversy, she has, as is alleged in tbe complaint, an inchoate right of dower therein, and ber interest is adverse to tbe plaintiffs within tbe meaning of sec. 2603, Stats. (1898). *Foster v. Hickox,*38 Wis. 408; *Hausmann Bros. Mfg. Co. v.*Kempfert, 93 Wis. 587, 67 N. W. 1136; *Hunt v. McDonald,*124 Wis. 82, 102 N. W. 318; *Mash v. Bloom,*126 Wis. 385, 105 N. W. 381; *Huntzicker v. Crocker,*135 Wis. 38, 115 N. W. 340. True, not having joined in tbe contract of sale, she is not a necessary party. *Foster v. Hickox,*38 Wis. 408; *Hunt v. McDonald, supra.*But being a proper party defendant, she cannot successfully demur on tbe ground that she is not a necessary party. *Foster v. Hickox,*supra. Should tbe wife refuse to join in tbe deed and release ber dower interest, it might become necessary to determine tbe value thereof and deduct it from tbe purchase price. Eor in a case where tbe wife of tbe vendor refuses to join to bar ber dower right tbe vendee has tbe op*395tion to decline to take a deed from tbe bnsband alone, and sne for breach of the contract, or he may accept snch deed as part performance and retain from the purchase price a sum equal to the value of the wife’s contingent interest. *Wright v. Young,*6 Wis. 127; *Conrad v. Schwamb,*53 Wis. 372, 378, 10 N. W. 395; *Zebley v. Sears,*38 Iowa, 507; *Hession v. Linastruth,*96 Iowa, 483, 65 N. W. 399; *Noecker v. Wallingford,*133 Iowa, 605, 111 N. W. 37; *Park v. Johnson,*86 Mass. 259; *Hazelrig v. Hutson,*18 Ind. 481; Pomeroy, Spec. Perf. sec. 462. The case of *Wright v. Young, supra,*points out how the value of such an interest should be ascertained. If the contingency suggested should arise, the wife ought to have her day in court on the question of the value of her dower interest, and she was for that reason alone properly made a party defendant. ’

The only contention in support of the husband’s demurrer is that there is no sufficient allegation of a tender. The complaint alleges “that by the terms of said contract said plaintiffs were to and did pay the sum of $1,400 in cash at the date of said contract, and were to pay the further sum of $14,000 sixty days from the date of said contract, at River Falls, Wisconsin.” It further alleges:

> “That on the 28th day of November, 1910 (being the sixtieth day), said plaintiffs, pursuant to the terms of said contract, came to River Falls, Wisconsin, with $14,000 in United States legal tender, and did then and there make due and legal tender of said money to said defendant *H. S. Miller,*and demanded said deed and abstract and possession of said premises, and said defendant *H. ■ S. Miller*then and there wholly failed, neglected, and refused to deliver said warranty deed and said abstract of title to said plaintiffs and has ever since so refused.”

Counsel for appellants claims that the allegations as to tender are insufficient because they are doubtful, uncertain, and ambiguous. But he inadvertently or studiously omits to point out wherein they are so. As we are unable to discern *396the alleged insufficiency, we quite naturally reach, the conclusion that it does not exist. The complaint undoubtedly states a good tender, and argument to support such a conclusion would serve only to confuse what is plain.'

*By the Court.*— Order affirmed.