
    CONTRACTS FOR SALE OF REAL ESTATE.
    Common Pleas Court of Montgomery County.
    Winter Zero Swartzel et al v. Walter V. Snyder, Administrator of Ellen E. Ross, Decd., et al.
    Decided June 10, 1927.
    
      Equitable Conversion under a Contract for Sale and Purchase of Real Estate — Vendor’s Interest in the Property Changes to Personalty — And in Case of Vendor’s Death before Deed is Executed Proceeds from the Sale Pass to his Personal Representative.
    
    1. Under a contract for sale of real estate, in which the vendor agrees to transfer the property named, by deed of general warranty upon full payment of the purchase price, and the vendee is placed in possession, there is an equitable conversion, the vendor’s interest in the property changing from real estate to personalty at the time the contract is executed and passing, in case of the vendor’s death before payment is completed, to his personal representative as personalty.
    2. Where such a contract is entered into by a wife, her husband joining and agreeing to release this contingent right of dower upon execution of the deed, and the death of the wife occurs before the contract is carried out, the agreement of the husband is not executory in the sense that he was to release hi* dower rights when the deed was delivered, but is absolute and enforceable, and his interest in the proceeds from sale of the land is an interest in the personal estate of his deceased wife.
   White, J.

This case comes before the court on the demurrer of the defendant Walter V. Snyder as administrator of the estate of Ellen E. Ross, deceased, to the answer and cross-petition of Erie J. Weaver, as receiver of the property of Charles E. Ross. The court has heard oral argument of counsel and carefully examined the helpful briefs submitted.

The suit is one for specific performance and was brought by Swartzels against the defendants, the case coming on for hearing on the pleadings and evidence, counsel by agreement reserving the question of the demurrer of defendants, Walter V. Snyder, as administrator, to the answer and cross petition of Erie J. Weaver, as receiver, for later determination, and leave was'granted receiver Weaver to file an amended answer and cross-petition, the demurrer standing to this answer and cross-petition. The court granted plaintiff specific performance and comes now to the demurrer of Walter V. Snyder as administrator to the answer and cross-petition of Erie J. Weaver as receiver.

The demurrer searches the record and the facts stated in the petition in this case and the facts found by the court in its decree as well as the facts well pleaded in the answer and cross-petition of Erie J. Weaver, as receiver, are before the court.

It seems that on or about April 1, 1924, one, Ellen E. Ross, wife of Charles E. Ross, was owner in fee of the real estate described in the petition, and about that time entered into a valid written contract with Winter Zero Swartzel and Ella Swartzel, husband and wife, whereby she sold and agreed to transfer to them by deed of general warranty, upon full payment of the purchase price, the real property described in the petition.

Under this contract the Swartzells entered into possession of the property, improved it and made payments as required by the terms of their contract.

Charles E. Ross, the husband of Ellen E. Ross joined in the execution of this contract, agreeing to release his contingent right of dower in said real estate upon execution and delivery of the deed called for in the contract, upon its complete performance. The following clause from the contract sets forth the undertaking of Charles E. Ross, to-wit:

“And said Charles E. Ross, husband of the party of the first part, hereby agrees to release all dower rights in said premises on execution and delivery of said deed.”

On November 29, 1925, Ellen E. Ross died and on December 5, 1925, Walter V. Snyder was duly appointed administrator of her estate.

A short time prior to the death of Ellen E. Ross, her husband, Charles E. Ross absconded to parts unknown, and Erie J. Weaver was duly appointed as receiver of his property.

At the date of the death of Ellen E. Ross the Swartzells were in possession of the real estate in question, and had complied with the terms of their contract, and they thereupon instituted this action for specific performance, having tendered and paid the balance found due under the- contract. A decree for specific performance was entered on-this application.

Of the money paid, $908.61 is claimed by receiver Erie J. Weaver to be the value of the dower estate of Charles E. Ross in said property. The defendant, Walter V. Snyder, as administrator of the estate of Ellen E. Ross, demurs to this claim of the receiver, Erie J. Weaver, and claims that said contract of sale and the proceeds thereof constitute personal assets of the estate of Ellen E. Ross, deceased, which pass to him as her administrator.

It is the claim of the receiver that the contract of Charles E. Ross was clearly executory in that he agreed to release his dower rights when the deed for said premises should be executed and delivered, and that inasmuch as Ellen E. Ross died before the deed was executed and delivered that his dower rights attached and that not having relinquished or been barred of it, he retained his dower interest in the said premises until the court ordered a transfer and conveyance to Swartzells, clear and free of said dower rights. He further claims that the contract being. executory and not being executed with the formalities of a deed, not being witnessed or acknowledged it did not transfer and release his dower in the premises. '

The administrator claims that at the time the owner of the real estate enters into a valid contract for its sale and the vendee is put into possession the nature of the vendor’s estate is changed from the time of the contract from real estate to personalty. In other words, there is an equitable conversion of the property. So that, if the vendor dies before the payment of the purchase price, it will go to his personal representative as personalty. If the husband of the vendor has joined in such contract of sale, agreeing to release his dower, then his interest in said estate is changed from the time of said contract from real estate to personalty and upon death of the vendor before the payment of the purchase price, leaving her husband surviving her, the interest of the surviving husband in the proceeds of such sale is an interest in his deceased wife’s personal estate as fixed by General Code 8592, and not dower in her real estate as fixed by General Code 8606,

The first question to be detex-mined is what was the legal effect of Charles E. Ross joining in the contract and agreeing to (in future) release his dower in the property in question.

In the case of Isham et al v. Buckeye Stove Company, 2 C. C. (N.S.), 1, the court held that:

“The right of action to declare void a contract, whereby one now deceased sold certain standing timber at a grossly inadequate price, is in the personal representative of the deceased, and as between the parties concerned, the trees have been converted into personal property.”

The above case is cited, approved and followed in the case of State ex rel. v. Moffit, 13 C. C. (N.S.), 152 at 157.

In the case of Stang et al v. Newberger et al, 6 N. P., 60, the court holds (4 syl.):

“Upon default in the payment of the purchase money due upon a land contract, which by its terms gives an option to the vendor to rescind the contract for such default, the vendor may elect to continue the contract in force and sue for the unpaid purchase price or to place the vendee in statuo quo and avoid the contract. This right of election does not descend to the heirs or devisees of the vendor, but follows the personal estate, and may be exercised by the personal representative.”

The doctrine of equitable conversion in the case" of absolute contracts of purchase has been approved by our Supreme Court in the case of Gilbert & Ives v. Port, 28 O. S., 276. In this case, at page 296, the court recognized the rule that:

“Equity looks upon things agreed to be done as actually done, consequently when' a contract is made for the sale of an estate equity considers the vendor as trustee for the purchaser of the estate sold and the purchaser as trustee of the purchase money for the vendor.”

But the court did not hold either with or without qualification that the rule applied “to optional contracts” such as leases in which the option to purchase is given, as well as to those absolute in terms.

Was the language used by Charles E. Ross (above quoted), in his contract absolute or optional? We have no hesitation in finding that it was absolute, an incident to the thing contracted to be sold and that it was bargained for by the plaintiffs and in the contemplation of all parties at the time their rights were fixed by the contract. His dower was not conveyed at once by the contract, but by hi's contract he did absolutely contract to sell it. The language used in this part of the contract contains no option or condition, hence is absolute. He contracted to release upon the execution of the deed. Equity only regards that as done which was contracted to be done.

I am of the opinion that by the terms of this contract there was an equitable conversion of the property in question. If there was an equitable conversion of the property, then the objection of counsel that the dower of Charles E. Ross was not relinquished or barred because it was not so done by deed properly executed in accordince with Section 8510 of the General Code, has no application. All that is required-in this particular is that there be a valid written contract for the sale of the property in question, absolute in terms, and a court of equity upon proper showing may enforce the contract.

Counsel have cited the case of Crookshanks v. Ransbarger, 80 W. Va., 21, which turned upon a statute of West Virginia. In analyzing the case the court considers the case of Lucas v. Scott, 41 O. S., 636, which latter case holds:

“That it was error to decree 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.”

We do not see the applicability of this case, however, as it was decided prior to The Married Woman’s Act of 1887. 84 Vol. Ohio Laws, General Code 7995-8004 inc.

Pomeroy’s Specific Performance of Contracts, 3rd Ed., page 671, in discussing similar decisions says:

“These decisions are, of course, based upon the wife’s common law incapacity to make a binding contract, and would doubtless not be followed in those American states where the wife has been clothed with full power to contract.”

This statement by Pomeroy is by inference borne out by our Supreme Court in the two cases which the Supreme Court followed the Lucas case, that is, in Bank v. Parisette, 68 O. S., 450, and in Barnes v. Christy, 102 O. S., 160 at 174, in each of which cases the court finds “that the .wife has not agreed to sign such contract or release her dower therein.”

In the Barnes case, 102 O. S., 160 at 174, the court say:

“The court did not find that the wife of the plaintiff agreed to sell to Christy at the price acceptable to her husband, or agreed to release her dower therein. She positively denied that she did so, and there is no finding by the court that her refusal was the result of collusion between herself and her husband, and she signed no written instrument whatever requiring her to release her dower interest.”

Courts of equity aim to do complete justice in considering the rights of all parties interested, and they will not lend their aid to work injustice or aid in bringing about results contrary to the manifest intention of the parties as expressed in a binding valid contract. Charles E. Ross intended to become bound by his agreement. The plaintiff bargained for and considered his dower rights when they made their contract. The plaintiff has performed and is entitled to what he bargained for. Charles E. Ross need not have agreed to release his dower, but having done so he must abide the consequences.

Many additional cases have been cited bearing upon the different phases of the case, but holding as we do that the agreement to sell the real property in question and to release dower upon execution of the deed worked an equitable conversion of the property from the date of the contract, it is not in our opinion necessary to discuss them.

The demurrer of the defendant, Walter V. Snyder, as administrator of the estate of Ellen E. Ross, deceased, to the amended answer and cross-petition of Erie J. Weaver, as receiver of the property of Charles E. Ross, is sustained. An entry may be prepared accordingly and an order taken directing the clerk to pay to Walter V. Snyder, as administrator of the estate of Ellen E. Ross, deceased, the money temporarily deposited with him by the former decree of this court pending the determination of the questions herein involved.  