
    Lucas v. Scott.
    L., the owner of a tract of land, and his wife, signed a contract by which they jointly agreed to sell the land to S. and to convey it by deed of general warranty; but L., by the contract, did not agree to convey with release of dower by his wife. And the circumstances of the sale show that he would have refused to agree to convey with release of dower by his wife and this fact was known to the purchaser. At the time agreed upon for performance of the contract the wife of L. refused to join her husband in the execution of the deed, and her refusal was not induced by any act, advice or procurement of her husband.
    In an action by the purchaser against the husband for a specific performance of the contract, held: that it was error to decree a specific performance against the husband with an abatement from the contract price of the land, of the value of the prospective dower of the wife.
    Error to the District Court of Jackson' County
    The defendant in error brought his action against the plaintiff in error for the specific performance of a contract between them for the sale of a certain tract of land. The contract was: “ For valuable consideration Robert C. Lucas and. Mary A. Lucas, bis wife, of the township of Lick, Count}' of Jackson and state of Ohio, propose to sell by deed of general warranty to Benjamin F. Scott, of the township of Washington, county .of Jackson, Ohio, certain lands situate in the townships of Washington and Lick, in said county and state, and described as follows, to wit: #■»%##*#
    “ Now the condition of this contract is, that if the said Benjamin F. Scott shall elect to take said lands on or before the 1st day of April, A. D. 1881, at the rate of seventy-five ($75) dollars per acre and pay for the same in three payments as follows, to wit: One third cash on the first day of April, 1881, at which time the deed to said lands are to be executed and delivered, one third in one year from said date, and one third in two years from said date. Said deferred payments to draw interest at 5 per cent, from date, and to be secured by mortgage on said premises, then this contract to be and remain in full force and effect, otherwise to be considered null and void. In testimony whereof the said Robert C. Lucas and Mary A. Lucus, his wife, have hereunto set their hands and seals this 30th day of November, A. d. 1880.
    Signed in the presence of ) Robert C. Lucas [Seal.] Ambrose Leach, Jr. V Mary A. Lucas [Seal.] ” David Davis. )
    The' plaintiff in the court below averred that on the 25th day of March, 1881, he elected to take the lands upon the terms provided in the contract, and that he thereupon notified Lucas of his intention, and that on the first day of April, 1881, he tendered to Lucas the full amount of the payment to be made at that time as provided by the contract, and also tendered performance in full of all parts of the contract to be performed by him and thereupon asked judgment, that the said Robert C. Lucas be required specifically to perform said agreement by conveying to him by deed of general warranty the land and premises as hereinbefore described, free and clear of any incumbrance of.dower in favor of the said Mary A. Lucas, wife of the said Robert C. Lucas; but in the event- it shall appear that it is impossible for the said defendant to make title divested of said dower interest, or that it would be inequitable to require him to do so, then that the said defendant be required to convey his interest in said lands and premises, and that an abatement be made from the contract price to an amount equal to the value of said contingent dower interest, to be ascertained by the proper computation.
    To this petition the defendant set up three defenses: First, at the time the written contract was made Mary A. Lucas was the wife of the defendant, and for a long time’ before that had been his wife, and that this was known to the plaintiff and that the plaintiff then knew that said Mary A. Lucas was not willing to sell the land and he took upon himself to procure her signature to the contract. Second, he denied that a tender of purchase money had been made for the amount required by the contract, and third, that said Mary A. Lucas upon her own motion refused to join him in the execution of a deed for the land, and further, that he was willing on his part to execute and deliver his deed for the land, and that on April 1, 1881, he tendered to the plaintiff his deed for the land. The case was tried on appeal in the district court upon an agreed statement of facts and the testimony of the parties. Upon the controlling facts of the case there was no serious conflict in the testimony.
    The defendant, Lucas, testified that he had a conversation at the court house in Jackson, with Scott, and told him that he did not think his wife would sign the deed and they had better drop it; that Scott answered him “that he would not bother him on her account.”
    Scott, the plaintiff, testified that he and Lucas had talked about going to Jackson to have the contract written; that when they met in Jackson, Lucas said his wife had come with him ; that he had mentioned the contract to her, and that she would not answer him, and asked him, Scott, to see her, that perhaps she would talk to him, and that he had learned that Lucas and his wife were not on good terms.
    The district court found the whole amount of the purchase money to be $10,600, and decreed that the defendant, Lucas, execute and deliver to Scott his deed for the land, and found that the age of the husband was fifty-nine years and the age of his wife was twenty-seven years, and found further that the value of the expectancy of dower of the wife was $2,677.04, and decreed that this sum should.remain a lien upon the land, the amount of it to be paid to Lucas in case he outlived his wife, and in case she outlived him the land to be released from any lien on account of it.
    The defendant below files his petition in error to reverse this decree.
    
      John T: Moore & Son and C. A. Atkinson for plaintiff in error.
    I. The question here presented is, Can Scott compel Robt. C. Lucas to perform on his part, with an abatement from the purchase price for the contingent right of dower, Lucas not being in fault, but being willing to perform, and only prevented by his wife’s refusal to join.
    We maintain that he cannot.
    The vendee, by his own intentional act, made the performance to depend upon the consent of a married woman, knowing that she could not be compelled to perform — she withholds her consent. Performance cannot be enforced— it has become impracticable. Pomeroy on Contracts, p. 278, Sec. 295, and notes 2 & 8.
    II. Compensation or abatement will only be decreed in cases, where the vendee has been misled, or there has been some-change or mistake by which he would lose something. 2 Parsons on Contracts, ed. 1860, p.558; Dyer v. Hargrave, 10 Ves., 506; Pomeroy on Contracts, §§ 217, 221 and note 1; 26 Ohio St., 334; Pomeroy on Sp. Per., §§ 346, 442; Waterman Sp. Per., §§ 317, 506; Peeler v. Levy, 26 N. J. Eq., 330; Franz v. Orton, 75 Ill., 100.
    III. But the direct question, whether or not specific performance can be had, where a wife refuses to join her husband in a deed has, to some extent, engaged the attention of courts and of law writers. See 1 Story Eq., §§ 731 to 735 and note to § 734; Pomeroy on Sp. Per., §§460, 461; 26 N. J. Eq., 330; Bailey v. James, 11 Grat., 468; Clark v. Seirer, 7 Watts, 346; Greenleaf v. Queen, 1 Peters, 138; 17 Ohio, 75; Waterman on Sp. Per., § 511; Murdock v. Lantz, 34 Ohio St., 598.
    
      W. A. Hutchins and David Davis for plaintiff in error.
    1. The vendee may require the vendor to perform, so far as he has title, and for any deficiency, compensation will be awarded, by way of abatement, out of the purchase money or as damages. Pomeroy on Specific Performance, §§ 438, 439 and cases cited; Waterman on Specific Performformance, § 499 and cases cited; Courcier v. Graham, 2 Ohio, 341; Williams v. Champion, 6 Id., 169: Wright’sOhio Reports, 406 and 656; Pollock’s Principles of Contract, 473 and cases cited.
    2. Where the wife of the vendor refuses to release her contingent dower interest, the vendee may require a conveyance of the husband’s interest, and have an abatement out of the purchase money to the extent of such dower interest. Wright v. Young, 6 Wisconsin, 125; Wingate v. Hamilton, 7 Ind., 73; Hazlerig v. Huston, 25 Id., 481; Springle v. Shields, 17 Ala., 295; Troutman v. Gowing, 16 Iowa, 415;. Yebly v. Sears, 38 Id., 507; Heimburg v. Ismay, 35 N. Y. Sup. Ct., 35; Davis v. Parker, 14 Allen, 94; Woodbury v. Luddy, 14 Id., 1; Curran v. Water Co., 116 Mass., 90; Richmond v. Robinson, 12 Mich., 193; Yost v. Devault, 9 Iowa, 60; Allison v. Shilling, 27 Texas, 450; Brewer v. Wall, 23 Id., 585; Williams v. Pope and others, Wright’s O. R., 406; Reynolds v. Clark, et. al., Id., 656.
   McCauley, J.

The rule is well settled “ that a vendor whose estate is less than or different from that which he agreed to sell, or who cannot give the exact subject matter embraced in his contract, will not be allowed to set up his inability as a defense against the demand of a purchaser who is willing to take what he can get with compensation for that which the vendor cannot convey.” Pomeroy’s Sp. Per., § 438, and authorities there referred to. This rule, however, is limited to those eases in which the purchaser had no knowledge at the time the contract was made, that the interest of the vendor was partial; that his title was defective, or that the subject matter was deficient. Pomeroy Spec. Per., Sec. 442. The purchaser here knew that the vendor had a wife. He did not contract with Lucas that he should convey the land with release of dower by his wife. The testimony of both parties on the trial tends to show that Lucas would not have made such a contract. He had doubts whether his wife would agree to the sale of the land. He sent the purchaser to, his wife to get her to agree to a sale. The purchaser persuaded her to sign the contract, when it was probable she would have refused to sign at the request of her husband. The purchaser knew that Lucas could not control his wife in the matter, either of making the contract to sell the land or in making him a deed for it, and that he would not be responsible for the refusal of his wife .to join him in the execution of a deed. Passing by the question whether or not a contract to convey by warranty deed is equivalent to a contract to convey by such deed with release of dower, the purchaser asking for a conveyance by the husband with an abatement for the prospective dower of the wife, asks the court to do for him what he knew at the time the contract was made, the purchaser would not have undertaken to do. . If a contract to convey by warranty deed is equivalent to a contract to convey by, such deed with release of dower by the wife, still a remedy which is not a matter of absolute right, but which is given only on equitable principles should be denied to a party who asks for that for which his contract does not expressly provide, and which, if insisted on at the making of the contract he then knew would not have been assented to by the other party. , ■

Judgment reversed.  