Riesz's Appeal , 1 Foster 167 ( 1873 )

The opinion of the court was delivered, May 17th 1873, by

Sharswoód, J.

It is not proposed to enter upon an examination and review of the cases which have been decided in England and our sister states upon the question presented upon this appeal. Great industry and ability have been exhibited by the learned counsel on both sides, in their printed and oral arguments, and it is but just to say that no suggestion or authority appears to have escaped them. But we consider the point as definitely settled in. this state in the opinion of Chief Justice Gibson, in Clarke v. Seirer, 7 Watts 107, recognised and affirmed as it has been in many subsequent cases: Riddlesberger v. Mintzer, 7 Watts 143; Shurtz v. Thomas, 8 Barr 363; Bitner v. Brough, 1 Jones 138; Hanna v. Phillips, 1 Grant 256; Weller v. Weyand, 2 Id. 102. These cases settle, if any amount of authority can settle anything, that in Pennsylvania, specific performance of an agreement to sell real estate will not be decreed against a vendor who is a married man, and whose wife refuses to join in the conveyance so as to bar her dower, unless, indeed, the vendee is willing to pay the full purchase-money, and accept the deed of the vendor without his wife joining. The policy of these decisions is very manifest. The wife is not to be wrought upon by her love for her husband, and sympathy in his situation, to do that which her judgment disapproves as contrary to her interest; nor is he to be tempted to use undue means to procure her consent. The vendor must be left in such cases to his action at law to recover damages. The principles upon which damages are recovered, and the measure of them, under different circumstances in such an action, are well explained in Bitner v. Brough, 1 Jones 127.

The same sound policy which forbids a decree for the execution of a deed by the husband — to be enforced by his imprisonment if he cannot obey — prevents any decree looking to compensation, abatement or indemnity. The case does not fell-within the principle of those decisions, where the vendor who cannot make title to all he has contracted to convey, is held to be not thereby relieved from specific performance as far as in his power; but shall be compelled to execute his contract with a reasonable abatement in the price. The right of dower of the widow is of such a contingent nature, depending as it does as well upon her surviving her husband, as on her continuance in life after his death, that no abatement in the price can be made which will be just to both parties, without in effect making a new contract for them; a contract which, perhaps in the first instance, neither party would have come into, certainly not the vendor. Receipt of the purchase-money in full may have been the main object of the sale to enable him to pay debts or carry 'out other plans. If he is to be subjected to serious pecuniary loss by his wife’s refusal to join, it will operate almost as- powerfully as the peril of his imprisonment, as a moral coercion and compulsion upon her to yield her consent, instead of that free will and accord which the law jealously requires her to declare by an acknowledgment upon an examination before a magistrate, separate and apart from her husband. The learned master, Mr. Clay, to whom it was referred to report what amount of the purchase-money should be retained by the vendee upon mortgage, as a compensation for him for apy claim the wife might thereafter make against the premises for dower, reported that in his opinion not less than forty per cent, of the price should be left in his hands for that purpose; a result no doubt just as to him, but how as to the vendor, who was personally in no default ? No stronger argument could be adduced to show the impolicy of making any decree. Specific performance is a matter of grace, and these are considerations which address themselves powerfully to the conscience of the chancellor.

Decree reversed. And now it is ordered and decreed that the bill be dismissed without prejudice; the costs in the court below and in this court to be paid by the complainant.