DocketNumber： No. CA92-07-013.
Citation Numbers： 621 N.E.2d 767, 86 Ohio App. 3d 657, 1993 Ohio App. LEXIS 1336
Judges： Walsh, Jones, Koehler
Filed Date： 3/8/1993
Status： Precedential
Modified Date： 11/12/2024
The majority, in reversing the trial court, sets forth a proposition of law with which I cannot agree, and therefore I dissent. *Page 660
Appellant/vendor herein executed a written agreement to sell his interest in his farm to appellee/vendee upon the payment of the agreed purchase price. Vendor reneged on his agreement, and vendee had an option to seek damages for breach of contract or for specific performance of the contract. Vendee elected to obtain all of vendor's title to the property and sought specific performance of the contract even though vendor's spouse had a inchoate right of dower.
Vendor may not defeat his obligations under the contract by his inability to convey his title free of his spouse's prospective interest in the property. While the law will not destroy the spouse's interest, it has established the means to determine the value of such interest. In this cause, vendor and his spouse colluded to avoid the agreement and "save the farm." The trial court properly relied upon the logic and rationale ofFindley v. Davis, supra.
The majority factually distinguishes Findley in order to allow the vendor to avoid his contractual obligation on the basis that he could not deliver unblemished title. The authorities cited by the majority from 1885, 1903, and 1921 and the applicability to this cause need to be revisited.
Although I may have misgivings concerning the trial court's effort to prospectively resolve the vendee's problems in obtaining financing and satisfying his obligations under the contract, I nevertheless would affirm the trial court's order of specific performance of the contract subject to the interest of the spouse, if any.