
    Richards et al. v. Doyle et al.
    M. and J. (the latter a married woman), owners,in remainder of a certain lot, join in a covenant, with the consent of R., the life tenant, to convey the whole estate to D. for a consideration, to be paid on condition that the vendors would grant the right of way over the premises to a railroad corporation. The right of way, in performance of the condition, having been granted, and D. being in default of payment, R. J. and the personal representative of M., who was then dead, commenced an action against D., making the heirs of M. and the husband of'J. parties defendants, to enforce specific performance of the contract. Held, that the coverture of J., the plaintiffs being able, ready and willing to convey a complete title to D. upon the payment of the purchase-money, is no defense to the action for specific performance.
    Error to the District Court of Franklin county.
    The original action was brought by plaintiffs in error, as vendors, to enforce the specific performance of a contract against Samuel Doyle, the purchaser.
    The contract was in writing, of which the following is a copy:
    “ This indenture, made and entered into this 12th day of February, A. D. 1872, between Samuel Doyle of the first part, and Margaret Morgan and Sophia Jones of the second part, witnesseth: that the said Samuel Doyle shall, upon the conditions following, purchase of the said parties of the second part the whole of lot number ten (10) of William Phelan’s Mount Pleasant Addition to the City of Columbus, Ohio, paying for the same five thousand dollars, one-third in hand and the balance in three equal annual payments: Provided, that the said parties of the second part shall first sign the right of way for the North Columbus Street Railway Company through said lot, and then if the City Council after such action shall confirm the right of way through said lot and on Kerr street, then the said party of the first part shall be held and firmly bound by these presents; otherwise they shall be null and void.
    “ The last payments mentioned above are to bear interest at the rate of eight per cent, per annum.
    “ Samuel Doyle, 7
    
      “ Margaret Morgan,
    “ Mary Richards,
    “ SopniA Jones.”
    At the date of the contract the title of said lot No. 10 was in Mary Richards for life, with remainder in fee in Margaret Morgan and Sophia Jones as tenants in common. Sophia Jones was then and still is a married woman. On the same day, and in compliance with said contract, Mary Richards, Margaret Morgan and Sophia Jones conveyed the right of way through said lot to the North Columbus Street Railway Company, and afterwards the city council of Columbus confirmed to said company the right of way.
    Samuel Doyle, who was the chief promoter of said railway, and owned five hundred shares of the capital stock of said company — the whole number of shares being five hundred and seven — under a contract with the company for the construction of the railway, and as lessee thereof for the term of ten years, took possession of the right of way so granted over said lot, being a strip one hundred feet in width and embracing about two-thirds of the entire lot, constructed the railroad thereon, and continued in the possession thereof until the commencement of the action.
    In the meantime Margaret Morgan died, leaving Mary Morgan, Jessie Morgan and Henry Morgan, her children and only heirs-at-law, and David Roberts was appointed administrator of her estate.
    The original action was commenced by Mary Richards, Sophia Jones and David Roberts, administrator of Margaret Morgan against Samuel Doyle and the heirs-at-law of Margaret Morgan. After the commencement of the action, E. A. Jones, the husband of Sophia, was made a party, and filed his answer affirming the contract and action of his wife, and averring bis readiness to join with bis wife in tbe execution of a proper deed of conveyance; in fact, a deed to Doyle, duly executed by Sophia Jones and her husband, was brought into court and deposited with tbe cleric to be delivered to Doyle upon bis compliance with tbe terms of said contract.
    Doyle resisted a decree for specific performance of tbe contract, chiefly on tbe ground of tbe coverture of Sophia Jones.
    Upon this state of facts, tbe court of common pleas dismissed tbe petition, and on proceedings in error, tbe district court affirmed tbe judgment of tbe court of common pleas.
    By this proceeding tbe plaintiffs seek a reversal of tbe judgments below.
    
      O. N. Olds, and Harrison (& Olds, for plaintiffs in error:
    Tbe coverture of Mrs. Jones was no defense to tbe action. Willetts v. Insurance Co., 45 N. Y. 45 ; L' Amoreux v. Could, 3 Selden, 349 ; Farley v. Palmer, 20 Ohio St. 223; Worsall v. Munn, 1 Selden, 229; Seagers s. Burns, 4 Minn. 141; Chamberlin v. Robertson, 31 Iowa, 408 ; Allen v. Berryhill, 27 Iowa, 534; 1 Cin. Sup. Ct. 161; Pilcher v. Smith, 2 Head. 208 ; 2 Cin. Sup. Ct. 402; Vance v. Nogle, 70 Pa. St. 176 ; Walker v. Coover, 65 Pa. St. 430; Fenelly v. Anderson, 1 Irish Ch. 706, 708 ; Hoggart v. Scott, 1 Russell & Mylne, 293; 7 Paige Ch. 77; 1 Story Eq. Jur. § 777; Wilson v. Tappan, 6 Ohio, 172; Brown v. Witter, 10 Ohio, 142; 2 Younge & Collyer C. C. 54. If it be conceded that tbe promise of Mrs. Jones was void because of her coverture, still tbe other two vendors, Mrs. Richards and Mrs. Morgan, were under no disability, and their promises were valid and binding and a consideration for tbe promise of Doyle. There was sufficient mutuality of contract between them and Doyle. Upon their failure to perform, Doyle could have enforced specific performance against them, with compensation for any defect of title, or be could have recovered damages at law. If they were unable, at the time of the contract, or before tbe commencement of this action, to convey a complete title to the land, Doyle knew of it, but be did not retire from tbe contract or offer to restore wliat lie bad received. He held what lie bad got, and afterward took and has ever since held possession under and in affirmance of the contract. He could not now place the vendors “ in statu, quo ” if he would, and he wouldn’t if he could. When Mrs. Jones and her husband executed their deed and deposited it as an escrow with the clerk, then, if not before, Mrs. Richards and the administrator of Mrs. Morgan were enabled to make a complete title and to fully perform, and were entitled to a decree. Doyle cannot and has not complained of the joinder of Mrs. Jones in the action, because it cannot prejudice him, and he is estopped by his contract from making such an objection.
    
      Lorenzo English and J. W. Baldwin, for defendant Doyle:
    I. Such a contract as the one under consideration, entered into by a married woman, cannot be enforced against her in equity; she cannot be compelled to perform it specifically. Upon this subject the general rule is, that feme coverts cannot bind their interest in lands, except in the precise form prescribed by law. Therefore an agreement by a feme Covert, even with the assent of her husband, for the sale of her real estate, is void and cannot be enforced in chancery against her. 1 Hilliard on Vendors, 56, citing Dunlap v. Mitchell, 10 Ohio, 117 ; Butler v. Buckingham, 5 Day, 492; Clark v. Reins, 12 Grattan, 98; 2 Hilliard on Vendors, 225 ; Emery v. Wase, 8 Vesey, 505; Davis v. Jones, 4 Bos. & P. 267; Martin v. Mitchell, 2 Jac. & W. 413. See also 1 Roper H. & W. 547; 1 Bright, 191; McCann v. Jones, 1 Rob. 256; Evans v. Kingsberry, 2 Rand. 120; Watts v. Kinney, 3 Leigh, 272; 1 Sugden V. & P. 268; Mitchell v. Dunlap, 10 Ohio, 117; 10 Ohio, 305 ; Martin v. Dwelly, 6 Wend. 9 ; Butler v. Buckingham, 5 Day, 492 ; Bishop on Married Women, 421, 422, § 601; 52 Pa. St. 400 ; 1 Disney, 128 ; 49 Miss. 307; 5 Heiskell (Tenn.) 26 ; 25 N. J. Eq. 390; 29 Ark. 650 ; 29 Ind. 260 ; 15 Minn. 59.
    II. This contract not being binding upon one of the plaintiffs, Mrs. Jones, and unenforceable against her, is not binding upon, and cannot be enforced against Doyle on the principle of law that a contract must be obligatory upon both parties thereto, or it will bind neither’. Chitty on Contracts, 15, 16 ; 1 Hilliard on Vendors, 435; Bodine v. Glading, 21 Penn. St. 50 ; German v. Machin, 6 Paige, 288; Benedict v. Lynch, 1 Johns. Ch. 373 ; Boucher v. Van Buskirk, 2 A. K. Marshall, 346 ; Flight v. Bolland, 4 Russ. 298 ; 2 Story Eq. § 751, note ; Stoutenburgh v. Tompkins, 1 Stockt. 332. See Chancellor’s decision in ajrpendix to Hilliard on Vendors, 306; Armiger v. Clarke, Bunbury, 110; Lawrenson v. Butler, 1 Schoales & L. 18; 1 Stockt. 332; Fry on Specific Performance, 198, § 286 ; 2 Md. Ch. Dec. 401; 21 Pa. St. 50.
    III. Specific performance cannot be had of part of a contract ; and when one of the several plaintiffs or defendants, joint contractors, is not bound by the contract, specific performance cannot be decreed pro tcmto as to the parties and tlieir interests, that might otherwise be bound thereby. The court will not compel specific performance of a contract, unless it can execute the whole contract. Roffey v. Shallcross, 4 Madd. 227; Dalley v. Pullen, 3 Sim. 29; Price v. Griffith, 1 De G., M. & G. 80; Fry on Specific Performance, 202, 329, § 536, et seg.; 5 Ves. 846; 2 Johns. Ch. 23; 1 Pet. C. C. 380; 2 Wheat. 336.
   McIlvaine, C. J.

The general proposition, that courts of equity will not enforce the specific performance of an executory contract of a married woman, either for or against her, may be admitted. The general rule undoubtedly is, that the obligation of a contract must be reciprocal and mutual between the parties in order to entitle either to a decree for specific performance against the other party ; and a married woman, as a general rule, not haying capacity to bind herself to the performance of an executory contract, the party assuming to contract with her, is not, in law or iñ equity, obliged to perform such contract on his part.

To what extent, or under what circumstances, however, performance or part performance of a contract by a feme covert will raise such an equity in her favor, that specific performance will be decreed to her, is not so clearly settled. It would seem safe, however, oil the authorities, to say, that when a fame covert, in the performance of her contract, has so changed her condition that the rescission of the contract would not place her in statu quo, and the other contracting party is tendered full performance, or can be made secure in the benefits of his contract, ccpiity will not allow him to say that he is not bound to perform oil his part.

"While we are inclined to think, that upon the principle here suggested, the plaintiffs below were entitled to a decree in their favor, there is another view of the case which clearly shows that the courts below erred in refusing to grant the relief prayed for. Mrs. Morgan, one of the contracting parties, most clearly was bound to Doyle to convey to him the whole of the premises contracted for, upon the performance of the conditions named in the contract, and upon failure to do so, would have been liable for damages resulting from such breach of her contract. It would have been no defense for her or her representatives to have shown that the title to the whole of the lot was not in her, but that a part interest was in Mrs. Richards, who did not promise to convey, and that another interest was in Mrs. Jones, who by reason of her coverture was not bound by her contract to convey. That Mrs. Morgan could have been compelled to convey to the extent that the title was in her or under her control is not a matter of dispute, and for so much of the estate as she was unable to convey or procure to be conveyed she would have been liable to make compensation. As between Mrs. Morgan and Doyle, the purchaser, the contract did not lack either mutuality ©r consideration. Hence, when it was shown in the court below that the representative of Mrs. Morgan was able, willing and ready to transfer or to have others transfer to the purchaser the whole estate for which he had contracted, he should have been decreed to pay the purchase-money. That Mrs. Richards and Mrs. Jones, with her husband, were demanding the same relief, did not prejudice the purchaser. His right was to have the title for which he had contracted, his duty was to pay the purchase-money. All the parties in interest were before the court and would have been concluded by the decree. A decree for specific performance against the purchaser would have done ample aud complete justice. The denial of such decree left the vendors without adequate remedy.

Judgments of the district court and of the common pleas reversed, and decree for plaintiffs.  