
    *John B. Rostetter and Wife v. William C. Grant.
    1. Where a husband, holding title to land in trust for his wife, at her request bargains and sells the same to a stranger, a specific execution of the contract of sale will be decreed against the husband, 'at the suit of the purchaser, although the wife joins the husband in resisting the same.
    
      %. As the right of the wife in such case is a mere equity, and she can have no claim of dower in the property, it is unnecessary for her to join the husband in the deed of conveyance, in order to vest in the purchaser a title freed from her claim; and it is not error in the court to order the husband to convey such a title.
    Error to the district court of Stark county.
    The action in which the judgment sought to be reversed was rendered came into the district court by appeal. The facts of the case are specially found by the court, and are as follows :
    In 1863, the plaintiff, John B. Rostetter, in whom was vested the naked legal title of land which in equity belonged to his wife, at her request, bargained and sold the same to the defendant, William G. Grant, who was ignorant of the wife’s right therein. Part of the purchase money was paid in hand, and, by the written contract of sale, Rostetter bound himself to make a conveyance, by good and sufficient warranty deed, upon payment of the remainder of tho purchase money, at a specified time. At the end of the period fixed, Grant tendered the remainder of the purchase money and demanded ¡a deed. Rostetter declined to make the deed, on the alleged ground that his wife refused her assent thereto, or to join in its execution; the fact being, however, that she was willing and offered to join ire the deed, on the condition that the purchase money should be paid' or secured to her, instead of her husband; and she refused to sign the deed solely because the husband desired her so to refuse, and would not consent to her receiving or having the money. Grant thereupon filed his petition in the common pleas against Rostetter, asking for a specific execution of the contract. The wife also was made a party defendant, after the cause came into the distinct court, and she there filed an answer, in which she alleges that she is un127] willing to join in the deed of conveyance; and *prays that her husband may be adjudged and decreed to convey the land to-trustees for her use.
    Upon this state of fact, the district court adjudged and ordered that the contract of sale should be specifically executed, by Grant’spaying the remainder of the purchase money into court, for the use-of the wife, and by Rostetter’s conveying the land to Grant by good and sufficient warranty deed, “free and Slear from all claims of his-wife.”
    The errors alleged are, in substance, that the court rendered a decree for specific execution, whereas it should have ordered the-land to be conveyed to the wife.
    • Since the filing of the petition in error, the wife has died, and her legal representatives have been made parties.
    
      John McSweeney, Bierce & Pease, and Meyer & Manderson, for plaintiffs in error.
    
      Meyer & Manderson argued:
    1. The doctrine that a court of equity will lend its aid to compel the specific performance of an agreement by which a husband covenants that his wife shall execute a conveyance to bar her of her' estate, when the performance is resisted on the ground of the wife’s-refusal to join in the conveyance, has long since been exploded in England. It was never adopted or recognized by the courts in this country. 2 Story’s Eq., secs. 731, 735; Paul v. Young, 4 Am. Law Reg. 412; Young v. Paul, 2 Stock. Ch. 401; Clark v. Reims, 12. Grat. 98; Hanna v. Phillips, 1 Grant’s Cases, 253; Fry on Specific Performances, sec. 666; Worthington’s Lessee v. Young, 6 Ohio, 313; Carr v. Williams, 10 Ohio, 305 ; Dunlap v. Mitchel, 10 Ohio, 117 ; Good v. Zercher, 12 Ohio, 364; Meddock v. Williams, 12 Ohio, 386; Silliman v. Cummins, 13 Ohio, 116; Purcell v. Goshorn, 17 Ohio, 125; Miller v. Hine, 13 Ohio St. 565; Carney v. Hopple’s Heirs, 17 Ohio St. 710.
    The legislation of the state is in accordance with the principles rannounced by the courts, and by its letter and spirit condemns and forbids all attempts to deprive a married woman of her interest in real estate, or to dispose of or incumber the same, unless it be that the wife shall join with the husband in a conveyance executed .agreeably to the requirements *of the statute. Act of 1846, [128 respecting the rights and interests of married women in their real estate. 44 Ohio L. 75. See also the act of 1861.
    2. The principle of estoppel in pais can not be set up in this case ,-against Catharine Rostetter or her heirs, by reason of her acts as a feme covert; we need scarcely inquire into the policy of applying the principle of estoppel in pais to the acts of married women generally respecting their real estate. The facts found by the court in its decree would not warrant the application of the principle of estoppel in pais against Catharine Rostetter, or her heirs, so as to -debar her, or them, of the estate in question, in favor of Grant, even in case that she had been a feme sole at the time of the negotiations and the making of the contract, and in all respocts acted as she did as feme covert. To give that effect to the rule, the party who seeks its application must be an innocent purchaser; and must have acted on the strength of the representations, or been deceived into so acting by the fraudulent concealment of the true owner. He must have purchased the property, not merely contracted to purchase it; he must have paid the purchase money, not merely contracted to pay it; and he must have been placed in possession and received a conveyance; and all this without actual notice of the true owner’s title or claim, up to the time of this full complexion of the purchase. Purcell v. Goshorn, 17 Ohio, 124; Sowell v. Daniels, 2 Gray, 161; McGregor v. Wait, 10 Gray, 72; Bemis v. Call, 10 Allen, 512; Glidden v. Strupler, 52 Penn. 400 ; 6 Am. Law Reg. (N. S.) 635 ; Morrison v. Wilson, 13 Cal. 497; Norris v. Lantz, 18 Md. 260; Griffith v. Clark, 18 Ib. 457; Bridges v. McKenna, 14 Ib. 258; Hersey v. Hersey, 4 Harring. 517; Harris v. Burton, 4 Ib. 66; Aldridge v. Burlison, 3 Blackf. 201; Moulton v. Hurd, 20 Ill. 137-143; Swift v. Castle, 23 Ill. 209-222; Hempstead v. Easton, 33 Mo. 142.
    Now, in this case, Grant, the purchaser, has not paid the purchase anoney. He paid but |20 on the contract, before he must have become aware of the rights and claims of Catharine Rostetter. The-additional trifle which he has paid was paid after he had notice. This money was tendered back to him; and Rostetter offers, in his-129] answer, to pay all *back that he received on the contract, with interest. He never was placed in possession of the premises-
    Rostetter holds the title in trust for his wife; and it is a well-settled rule in equity, dhat if a trustee, who holds the legal title to-premises in trust for another, contracts to sell and convey the property, and such disposition of the property still remains in contract, thecourtwillnotenforceaspecific performance of the agreement, even in favor of a bona fide purchase, because involving a breach of trust. See Hill on Trustees, 282; Bridger v. Reid, 1 J. & W. 74; Ord v. Noel, 5 Mod. 438; Wood v. Richardson, 4 Beav. 174; Adams v. Broke, 1 N. C. C. 617; Thompson v. Blackstone, 6 Beav. 470 ; Mortlock v. Buller, 10 Ves. 292; Turner v. Harvey, Jac. 169 ; Neale v. McKenzie, 1 Keen, 474 ; Bellringer v. Blagrave, 1 De G. & Sm. 63; The Shrewsbury and Birmingham Railway Co. v. London and Northwestern Railway Co., 4 De G. Mac. & G. 115; Maw v. Topham, 19 Beav. 576; Law v. Urlwin, 16 Sim. 377; Hill onTrustees, 477, 509; Dawes v. Betts, 12 Jurist, 709; 2 Lead. Cas. in Eq. (Hare & Wallace Notes), 659.
    What authority has Rostetter to make a conveyance to Grant?' Is not such conveyance expressly forbidden and held void by the-provisions of our statutes ? In view of those acts, what power have-the courts to enforce such a contract?
    Suppose even such conveyance had been taken by Grant from Rostetter, after Grant had notice of the trust, no doctrine is better-established than this : “ That a purchaser from a trustee, with notice of a trust, though for a valuable consideration, is in equity bound by the trust to the same extent, and in the same manner, as-the person from whom he purchased. And this is the case,, equally, whether it be an express trust or a constructive trust.” Hill on Trustees, 164; Mead v. LI. Orrery, 3 Atk. 238; Winged v. Lefebury, 1 Eq. Cas. Abridg. 32, 43; Earl Brooke v. Bulkeley, 2 Ves. 498; Taylor v. Stibbert, 2 Ves. Jr. 437; Crafton v. Ormsley, 2 Sch. & Lef. 583; 2 Sugd. Vend. 259; Aduir v. Shaw, 1 Sch. & Lef 262; Mansell v. Mansell, 2 P. Wms. 681; Sanders v. Dehew, 2 Vern. 271; Pye v. George, 1 P. Wms. 128; Maloney v. Kernan, 2 Dr. & W. 32; Kennedy v. Daily, 1 Sch. & Lef. 379; Boney v. Smith, 1 Vern. 145; 130] Pooley v. *Budd, 14 Beav. 34; Wormsley v. Wormsley, 8 Wheat. 421; Oliver v. Piatt, 3 How. 333; Clark v. Hackendorn, 3 Yeates, 269; Peebles v. Reading, 8 Serg. & R. 495; Reed v. Dickey, 2 Watts, 459; Hood v. Fahnestock, 1 Barr, 470; Wilkins v. Anderson, 1 Jones (Penn.) 399; Murray v. Ballou, 1 Johns. Ch. 566 ; Den v. McKnight, 6 Halst. 385 ; Hugh’s Heirs v. Bell’s Heirs, 1 J. J. Marsh. 403; Massey v. McIlwaine, 2; Hill Eq. 426 ; Truesdell v. Callaway, 6 Miss. 605 ; Suydam v. Martin, Wright (Ohio), 384; Stiver v. Stiver, 8 Ohio, 217-221; Benzien v. Lenoir, 1 Car. L. Repos. 504; Ligget v. Wall, 2 A. K. Marsh. 149; Notes to Le Neve v. Le Neve, 2 Lead. Cas. in Eq. (Hare & Wallace Notes), 23, and post 510; Caldwell v. Carrington, 9 Pet. 86; Bailey v. Wilson, 1 Dev. & Bat. Eq. 182; Wright v. Dame, 22 Pick. 55; 2 Story Eq., secs. 1257, 1258.
    A cestui que trust who is entitled to the whole beneficial interest in the property, as was Catharine Rostetter, is entitled to a conveyance of the legal title; and it is one of the first duties of the trustee to execute such conveyance of the legal estate, when required by the cestui que trust; and if the trustee unreasonably refuses to convey, the court will compel him by decree. Hill on Trustees, 278, and authorities there cited.
    Now, while we admit that if the trustee conveyed the legal title to a purchaser for a valuable consideration, and such purchaser has not, at the time, any notice of the trust, the title of the purchaser is good, and unaffected by the trust (Hill on Trustees, 282; Ibid. 509) ; we insist that it is equally well established, that to entitle the purchaser to set up, in defense of his title, the plea of bona fide purchaser without notice, “ the legal estate must have been conveyed to 7him, and the consideration money must have been paid, without such notice, truly and bona fide ; the plea must deny notice of the claim or trust before the execution of the conveyance, and payment of the consideration money; for till then the transaction is not complete Hill on Trustees, 514, 515, 517; Ashton v. Ashton, 3 Atk. 302; Harrison v. Southcote, 2 Ves. 396; Sugden on Vendors, 304; Snelgrove v. Snelgrove, 4 Dessaus. 274 (where the cases are cited); Moore v. Mayhew, 1 Chan. Cas. *34; Maitland v. Wilson, 3 Atk. 814; [131 Maloney v. Kerwan, 2 Dr. & W. 31; see also 2 Atk. 241; High v. Batte, 10 Yerger, 186; Bunnel v. Reed, 21 Conn. 592; 8 Wheat. 421, and notes.
    It was held by the Supreme Court of Pennsylvania, in Youst v. 
      Martin, 3 S. & R. 423, “that payment of part of the purchase money before notice, although not sufficient to invest the vendee with the character of a bona fide purchaser, as it regards the estate purchased, gave him a right to invoke the aid of the equitable principle, that ho who would claim equity must do equity, and require reimbursement from the rightful owner, as the condition of giving way to his title.” 2 Lead. Cases in Eq. (Hare & Wallace Notes), 116. “There can be little doubt that equity will now give protection in some form in this country, for all payments and expenditures actually made before notice; although payment in full may be and no doubt is necessary to constitute a good bar by plea to the bill.” Ibid. 116, 117. And it is plain that “the right of relief against the cestui que trust, must in general be limited to compensation and reimbursement for the amount actually expended on the land or paid for it.” Ibid. Beck v. Uhrich, 1 Harris, 639 ; 4 Ibid. 499 ; Kunkle v. Welsberger, 6 Watts, 126.
    This, then, is the extent of the relief afforded in such case against the cestui que trust; in cases where the cestui que trust is under no disability. We deny that even this relief could be had in the case of cestui que trust who is a feme covert; against whom, as we have ¡seen, the doctrine of estoppel in pais does not apply. Glidden v. Strupler, 52 Penn. 400, above cited.
    
      J. A. Ambler, for defendant in error, argued :
    1. That, under the facts of the case, Mrs. Bostetter was not entitled to a decree securing to her the real estate in question as her separate property; that her conduct in reference to the sale to Grant would preclude her from the benefits of such a decree as against him, and that her coverture makes no difference in this regard. Smiley v. Wright, 2 Ohio, 506 ; Shotwell v. Sedam, 3 Ohio, 5; Carter v. Longworth, 4 Ohio, 384; Reilly v. Miami Ex. Co., 5 Ohio, 333 ; Buckingham v. Smith, 10 Ohio, 298; Brinkerhoff v. Lansing, 4 Johns. Ch. 354; Ohio & Miss. R. R. Co. v. Crary, 1 Disney, 128. 182] *2. That Grant being an innocent purchaser and Mrs. Bostetter having assented to the sale, he was entitled to a deed from Bostetter, conveying a good title clear of dower — a conveyance he Is able to make; and that as she is to have the purchase money her equitable rights are protected. That a court of equity should, in case of a contract by the husband to convejq decree a specific performance by him, when it appears that, by his procuration and fraud, 
      his wife refuses to join with him in executing the necessary papers. "This is not such a case as that of Young v. Paul, 2 Stock. Ch. 401.
   Welch, J.

We see no error in this decree to the injury of cither -of the plaintiffs in error.

The husband complains of it, for the alleged reason that it requires him to coerce his wife into the execution of a deed. Tho answer to this complaint is, that the wife need not sign the deed. 'The full legal title is in the husband, and his deed alone will pass that title to the purchaser. The wife can have no claim for dower, either in her own land, or in land hold by her husband as mere ■trustee. She has either a right to the whole estate, or to no part of it; and if she has a right to the whole, it is a mere equitable right — a right to go into equity and compel a conveyance of tho -legal title. This is precisely what she is attempting to do in tho ■present case. She has no title which she can retain, by refusing to join in a conveyance. If anything, she has a mere right to acquire ■the title. The husband, therefore, has no just ground to complain of this decree. It only requires him to fulfill his plain and admitted agreement, by executing his own deed.

Has the wife any just ground, to complain of the decree? She says that Grant, not having completed the purchase, can not claim the rights of an innocent purchaser without notice; and that no estoppel can be pleaded against her, as she is a married woman; and she therefore claims that the court erred in refusing to order the title of the land vested in a trustee for her use. But the title has already been vested in a trustee for her use. Why change the trustee? Surely, another can not be found more watchful of her interests, or more willing to subserve them, even to the violation of his *own contracts and rights, than her husband has been. [13£! There seems to be a perfect accord between the husband and wife in this matter. When she requests him to soil, he sells, and when she requests him to disregard the contract of sale, he disregards it. No danger of her interests suffering in his hands. As often as he happens to sell at a low price he will get her to object, and then rescind the contract; until he shall finally make a satisfactory sale, perhaps for more than it is worth, and then he will, at her request, .ask for a specific execution. If tho court had placed the property in tho hands of another trustee for her use, as she requested, surely one of the duties of that trustee would be to sell the nroperty according to her directions. That is just what the husband did. If her counsel are right now, in contending that no sale or conveyance is valid unless she joins in the deed, the new trustee would be-as powerless to sell the land as the old one; and she might as well have the title vested in her own name at once. Any attempt by the new trustee to sell her land- — especially if the land should happen to rise in value after making the contract of sale — -might only result in another suit like the present. We hold the law to be that, as soon as her trustee, the husband, bargained and sold the land at her request to Grant, her equity was changed from the land to the-purchase money; in equity the land became the property of Grant,, and the purchase money became hers. There is, therefore, in the-case no question of “ purchaser without notice,” or of “ estoppel,” or of the power of a court, of chancery to decree against the husband a conveyance of the estate of the wife. Rostctter was a trustee, and the contract of sale, made by him at the request of his-wife, the cestui que trust, was made in the legitimate exercise of his powers as such trustee, and should be specifically executed, notwithstanding the objection of the wife.

Judgment affirmed.

Day, C. J., and Brinkerhoff, Scott, and White, JJ., concurred.  