
    The Peoples' Savings Bank Co. v. Parisette et al.
    
      Vendor of land obligates himself to convey — By good warranty, etc. — No stipulation against incumbrances and dower right— Wife need not join in deed, when — Vendee aware of facts— Court will not decree specific performance — Against husband with abatement of value of wife’s dower.
    
    
      1. Where a vendor of land has obligated himself by written contract to convey “by good warranty deed and abstract of title from organization of county,”-but the contract contains no stipulation for a deed -containing a covenant against incum ■brances generally, and none against any inchoate dowei right, it is not essential to the performance of the -contrae'' by the vendor that his wife should join in the deed and re lease her right of dower.
    2. Where, in an action brought in a court of equity to enforce the specific performance of a contract for the sale of land by the •purchaser -against a married man, the owner of the fee, whd alone signed the contract, it appears by the contract itself that some one other than the husband was expected to sign it but has not done so, and the contract contains a stipulation to convey by ai good warranty deed, but contains no ■agreement for a covenant against incumbrances, and it appears, further that the wife has not agreed to sign such contract or in any way release her inchoate right of dower in the land, and that the purchaser at the time knew that the vendor.-had a wife who would under the law be entitled to a right of dower, and there is no collusion between the husband and wife relating to the contract or deed, the court will not decree specific performance against the husband, with an abatement in the contract price of the land of the estimated value of the prospective dower of the wife.
    (Decided June 2, 1903.)
    Error to the Circuit Court of Summit county.
    The plaintiff in error, The Peoples’ Savings Bank Co., was plaintiff in the courts below. Its action was brought against Charles Parisette and his wife, Susan. Parisette, to enforce specific performance of a land, contract for certain lands in the city of Akron, executed by the husband alone. The contract was of the-kind known as an optional contract in which it was. recited that “for and in consideration of fifty dollars,, received to the full satisfaction of F. J. Wettach,, the receipt of which is hereby acknowledged, we do' hereby give said F. J. Wettach, his heirs and assigns,, the refusal to purchase of us until December 15,, 1900, for the sum of $24,000, * * * the following; described tract of land,” [description follows], and “if said F. J. Wettach, his heirs or assigns, at any time, on or before said date, pays the said sum as. above set forth, we do hereby bind ourselves, our heirs, administrators or assigns, to convey to sáid F. J. Wettach, his heirs, administrators or assigns, by good warranty deed and abstract of title from organization of county, of said above tract or lot of land.”
    Issue being joined by separate answers and reply, the cause was tried in the common pleas, and by the plaintiff appealed to the circuit court. That court found the ultimate issue for the defendants. The facts specially found are in substance: That Charles Parisette, at the time of giving the option, was the owner in fee of the premises. Susan Parisette then was and now is his wife. She has an inchoate right of dower in the premises, and no other interest therein. Wettach was the duly authorized agent of Charles Parisette for the sale of the premises, and the option was given to him to aid in a sale. Susan never signed or agreed to sign any contract or deed for a sale of the premises, and never agreed to sell the same, or to release her inchoate dower therein. Wettach duly assigned the' option to the plaintiff Company, and it paid the fifty dollars. Within the life of the option the Company elected to take the premises on the terms stated, and so notified Charles, who then refused to make a conveyance. On December 13, 1900, and within the life of the option, the Company tendered Charles the full balance in lawful money and demanded a deed of the premises as provided for in the option, which he again refused. Plaintiff Company knew that Charles Parisette had a wife living at the time he signed the option. There was no collusion between Charles Parisette and his wife relating to said option or deed. On December 21, 1900, Charles Parisette duly tendered the plaintiff a good warranty deed for the premises, properly executed and signed by himself alone, and ever since has been ready and willing to deliver said deed, but plaintiff refused and still refuses to accept such deed.
    From the foregoing the court finds as matter of law: (1) That the plaintiff is entitled to no relief against Susan Parisette. (2) That the plaintiff is not entitled to a warranty deed for said premises from the said Charles Parisette, except upon payment to. him of the entire unpaid portion of the purchase money provided for in the option given by him. Then follows the specific order “that the said Charles Parisette deliver to said plaintiff, on its request so to do, the deed heretofore tendered him to plaintiff upon the payment of said plaintiff to said defendant Charles Parisette of the balance due on said contract, to-wit: the sum of $23,950.” 'Judgment as to costs followed accordingly, from all which the plaintiff Company brings error.
    
      Mr. Nathan Morse, for plaintiff in error.
    I. A general warranty is a covenant on the part of the grantor that he, his heirs, etc.,- shall warrant and defend the title conveyed to the vendee, his heirs, etc., forever against the lawful claims of all persons. Anderson’s Law Die., 1105; Stanley v. Bedinger, 1 Circ. Dec., 522; 2 C. C. R., 345.
    II. A deed of land subject to an inchoate right of dower is not a marketable title. Tiffin v. Shawhan, 43 Ohio St., 178; Kellerman v. B. & L. Assn., 39 Bull., 203.
    III. A marketable title is such a oné as ought to satisfy a man of ordinary prudence. Rife v. Lybarger, 49 Ohio St., 429.
    IV. Right of dower, although inchoate, is an incumbrance upon the lands to which it attaches and is within the operation of the ordinary covenants against incumbrances, and a contingent right of dower is within the covenant of . general warranty. 2 Scribner’s Dower, 3; Prescott v. Trueman, 4 Mass., 627; Shearer v. Ranger, 22 Pick., 447; Wright v. Young, 6 Wis., 125; Black v. Kuhlman, 30 Ohio St., 198.
    V. Plaintiff in error is entitled, under his contract, to a deed of general warranty, and the court will enforce specific performance of that contract, though the wife did not join therein, and if the defendant cannot make such deed, nor the court decree the same; if Butler refuses to cancel the mortgage or if‘Mrs. Parisette refuses to sign the deed, the court can and should order performance by Parisette, as far as he is concerned, and that he (Parisette) protect this plaintiff in error from both said mortgage and said inchoate dower right. 3 Parsons on Contracts, 337, 338; Troutman v. Gowing, 16 Ia., 415; Zebley v. Sears, 38 Ia., 507; Davis v. Parker, 14 All., 94; Wright v. Young, 6 Wis., 125; Luckett v. Williamson, 31 Mo., 54; Lucas v. Scott, 41 Ohio St., 640; Martin v. Merritt, 57 Ind., 34; Moore v. Moulton, 2 Bull., 323.
    YI. The proper form for such relief is to require vendor to execute the conveyance as per his contract, and, from the agreed purchase price, to order the vendee in paying the same to retain so much thereof as is necessary to pay off the mortgage and interest when due; and added thereto so much thereof as the court shall find from the annuity tables is the equivalent of the inchoate right of dower, and secure the payment thereof, with interest, by mortgage upon said premises, the said sums so retained to be for the payment of the mortgage when due, and the amount for indemnity against the inchoate right of dower, to be paid to Parisette or wife as the event shall determine. Stanley v. Bedinger, 1 Circ. Dec., 522; 2 C. C. R., 344; Moore v. Moulton, 2 Bull., 323.
    The policy of our law is and always has been to facilitate the easy transfer of real estate, and to maintain contracts by specific performance, when the same can be done with justice and equity to all parties, and we contend that the law in regard to matters of incumbrances and dower rights, has always, in this state, been as we claim it, viz.: to enforce the contract; and at the same time protect lienholders, dower rights, and a purchaser, as can be fully and equitably done in this case. '
    
    Messrs, Stuart & Stuart, for defendants in error.
    The decisions on the question involved in this case, it will be found on examination of the authorities, turn very largely upon the facts of each particular case.
    In this case the bank knew that Charles Parisette had a wife, was well acquainted with both parties, knew that the option was made out for the wife to sign, and that she had not signed it. Mrs. Parisette has all through this proceeding, from the time she first learned that'there was talk of selling the property, been unwilling to have it sold. She has done nothing to give the bank any right to impair of change her interests in the property. There was no collusion between herself and her husband, Charles Parisette. He has always been ready and willing to carry out his contract. He is not in court asking that the bank be compelled to carry out its part of the contract.
    If a deed of general warranty covers an inchoate right of dower, concerning which proposition the authorities in other states seem to be at variance; still there is no cause of action until the dower becomes consummate. Nyce’s Executors v. Obertz. 17 Ohio, 75.
    If a person agrees to pay another a certain sum of money for a certain piece of property, knowing at the' time that the owner of the property has a wife living, and that the wife has not bound herself in any way to release her dower, he has' entered into an agreement with his eyes open. If he wanted that dower interest released he should have seen that it was put in the contract. It is uncertain whether the dower interest will ever be worth anything. If it is, and it is covered by the covenants of warranty in the deed, then the purchaser has his remedy against the vendor’s estate.
    This is the rule at law. But the plaintiff in error is in this court asking for specific performance; true it has abandoned its claim for specific performance by Susan Parisette, but it 'asks that the court order a certain, or rather a very uncertain, amount to be deducted from the purchase price as an indemnity against possible future loss.
    Should a court of equity then make the order prayed for?
    We think not. It is true there are diverse decisions upon this question in other states, but we claim the law is as stated by our circuit court, that it is well settled in this state. Lucas v. Scott, 41 Ohio St., 636.
    Authorities which sustain the proposition for which we contend are as follows: Tuite v. Miller, 10 Ohio St., 382; Black v. Kuhlman, 30 Ohio St., 203; Reilly v. Smith, 25 N. J. Eq., 158; Riesz’s Appeal, 73 Pa., 485; Humphrey v. Clement, 44 Ill., 299; Bostwick v. Williams, 36 Ill., 65; Peeler v. Levy, 26 N. J. Eq., 330.
    To decree specific performance with indemnity would be to inquire, not whether a good title could be made, but how to provide against a bad one.
    The courts in Pennsylvania, New Jersey and Illinois hold squarely with us in our contention, and while there is a quotation in the New Jersey Ohaneery Reports, found in 21 Atl. Rep., 475, from Pomeroy on Specific Performance, in support of the opposite view, with apparent approval, yet the question of an inchoate dower was not involved in, that case and there was no reversal or modification of the long established rule in New Jersey. We believe that the decisions of our Ohio courts, which have any bearing on the question, and which we have already cited, sustain the proposition for which we contend, and that was the view taken by the common pleas and circuit courts in this case.
   Spear, J.

It is insisted by counsel for plaintiff in error that the stipulation in the option is for a deed conveying the entire property free from any and all rights, claims, and incumbrances, and of the latter class is the inchoate right of dower; that the obligation, therefore, rested on the vendor to clear the title, and convey free of all claims of every kind; that failing this the vendee should have been allowed to retain so much of the purchase money as will protect his title against such inchoate right of dower, and the vendor decreed to convey on receiving the remaining part of the purchase money, and that the refusal of the circuit court to so adjudge was error.

This proposition of counsel assumes that a wife’s inchoate right of dower is an incumbrance on her husband’s land, and that the optional contract contains a stipulation on the part of the vendor that he will convey by deed embracing a covenant against incumbrances. While the first proposition seems never to have been distinctly decided in Ohio, the la¡w is so held by courts of last resort in a number of the states, notably Maine, Massachusetts, Indiana, Wisconsin, Iowa and Michigan, and it is declared by Judge Scribner, in his admirable work on Dower (vol. 2, p. 3), after a review of the authorities, that: “A right of dower, although inchoate, is so far an incumbrance upon the lands on which it attaches as to be within the operation of the ordinary covenant against incumbrances.” But if this proposition be conceded, still the plaintiff must establish that the contract binds the vendor to convey by deed containing the usual covenant against incumbrances. It is clear that there is not a specific stipulation to that effect. The language is: “By a good warranty deed and abstract of title from organization of county.” The term “warranty” usually implies a warranty of the title, and that it was the matter of title that the parties had in mind in framing this stipulation is manifest from the terms used. The purchaser was to have in his deed a warranty of title, and accompanying the deed an abstract of title. A covenant of warranty and a covenant against incumbrances are essentially different in their nature. A breach of the one is ordinarily attended by consequences differing from those following a breach of the other. The former is in the nature of a covenant for quiet enjoyment. As well defined by Collet, J., in King v. Kerr, 5 Ohio, 155, it “is an undertaking by the warrantor that on the failure of the title which the deed purports to convey, either for the whole estate or for a part only, by the setting up of a superior title, that he will make compensation in money for the loss sustained by such failure.- * * * This covenant is not broken until the grantee, his heir or assignee, is evicted from or disturbed in the enjoyment of the premises, or a part of them, by the setting up of a superior or paramount title.” To which may be added the qualification that the covenant may be broken by any disturbance of possession wbicb is equivalent to an eviction. Tbe latter covenant is a stipulation against all rights to, or interest in, the land wbicb may subsist in third persons to tbe diminution of tbe value of the estate, tbougb consistent with tbe passing of tbe Tee by tbe deed, and such covenant, if there be an incumbrance, is broken so soon as made. We are aware that it has been held, here and there, that an agreement for a good and sufficient warranty deed implies a deed embracing covenants usually contained in deeds in this state, but we are not aware of any authoritative bolding to the effect that tbe term “good warranty deed,” where used in a contract in direct connection with tbe matter of title, implies, as conclusion of law, more than it expresses, and we are not ready in this case, under tbe peculiar facts of it, to affirm tbe unqualified position of counsel in this respect. Indeed, as we understand it, tbe settled rule is that a covenant of general warranty, by itself, does not include a covenant against incumbrances (Bostwick v. Williams, 36 Ill., 65); and it is stated unqualifiedly by a learned author that a covenant of warranty is not broken by an outstanding inchoate right of dower. 3 Washburn on Real Prop., sec. 2389. Manifestly it could not be. Even tbougb it be conceded that tbe covenant of warranty is sufficient to cover a claim for dower, yet there has been no eviction, and nothing equivalent to an eviction. There has, therefore, been no breach, and there may never be. In a situation where tbe dower right has become consummate, and tbe claim prosecuted so that tbe purchaser has been deprived of tbe possession of a portion of tbe land, a different case is presented. Johnson v. Nyce, 17 Ohio, 66; Nyce v. Obertz, 17 Ohio, 71. If this position is maintainable, and it is difficult to see why it is not, it would be a full answer to the demand for a decree against the husband requiring a conveyance embracing a release of dower by the wife to say that he had incurred no obligation to that effect, and therefore it is not essential to the performance of his contract that his wife should join in the deed and release her right of dower; and the conclusion would, also afford a full answer to the demand that a portion of the purchase money be withheld until the dower right becomes consummate, or is extinguished by the decease of the wife.

But suppose this position be doubted, still there is another phase of the case which we are unanimous in thinking satisfactorily disposes of it. Let us inquire more specifically into the terms of the agreement, and the inferences to be drawn from it. What was the contract specific performance of which plaintiff demanded, and what the breach, if any? The parties were the vendor, the husband, and the vendee, the plaintiff. The paper itself carries the information that it was when drawn contemplated to be executed by some one other than the vendor, and since the plaintiff was. aware that he had a wife living, the inference is. natural that she was the person whose signature had been expected. The paper further showed that she had not signed, and the fact found is that she had made no agreement to sign or sell the property, or release her inchoate right of dower. Furthermore, the absence of her signature would suggest a refusal by her. The Company knew, therefore, that it was dealing with the husband alone as to his right and title in the property, it knew that the wife could not be compelled to sign, and that, therefore, the contract was impossible of., specific execution if construed to include ber dower. It knew that it was accepting a contract which on its face did not purport to sell any interest but that of the husband, and especially did not purport to sell or agree to convey any inchoate* dower of the wife. In this situation of affairs the Company chose to agree to j>ay the stipulated price for just what the option purported to sell. No fraud, or overreaching, or mistake of any kind is charged. The vendor is ready to convey just what the stated terms of his contract obligate him to convey. How can the Company reasonably demand that the court import into the contract a stipulation to convey by a deed containing a covenant against this dower right, when no agreement of that character, nor respecting incumbrances of any kind, is expressed, and when in all probability, had such a ‘demand been made of the vendor, he would have refused to comply with it? We think it cannot. The effect of the construction contended for by counsel would be either to attempt to arrive at a sum to be deducted absolutely by a process admittedly speculative, or to suspend the payment of a considerable portion of the purchase money to the grantor during the joint lives of himself and his wife, which, it seems to us, could never have been within the contemplation of the parties when this optional contract was signed. Plaintiff was in a court of equity pressing an inequitable demand. We think it was properly refused. On the plaintiff’s o^rnt construction of the option the Company is in the attitude of one who takes the promise of another to do that which it is known he cannot perform except by the concurrence of a third person. Such purchaser contracts with full notice of the uncertainty attending the seller’s ability to perform, and, not having been misled to his ihjury, cannot* now ask-the extraordinary aid of a court of conscience in repairing such loss, if any, as he has sustained by the vendor’s failure to complete his contract.

A number of cases cited by counsel in his brief hold the contrary doctrine, but our conclusion is in accord with the holding of this court in Lucas v. Scott, 41 Ohio St., 636. It is also the doctrine of the English courts, for which see Pomeroy on Con., secs. 442, 458, 461; Castle v. Wilkinson, L. R., 5 Ch., 534, and James v. Lichfield, L. R., 9 Eq., 51. Likewise of, the courts of New Jersey, Pennsylvania, and Illinois. Hulmes v. Thorpe, 5 N. J. Ch., 415; Young v. Paul, 2 Stock., 401; Hawralty v. Warren, 18 N. J. Eq., 124; Welsh v. Bayaud, 21 N. J. Eq., 186; Reilly v. Smith, 25 N. J. Eq., 158; Peeler v. Levy, 26 N. J. Eq., 330; Clark v. Seirer, 7 Watts, 107; Riesz’s Appeal, 73 Pa. St., 485; Humphrey v. Clement, 44 Ill., 299. See also, Bostwick v. Williams, supra, and 2 Story’s Eq., secs. 730, 731, 732, 733, 734 and 735.

The judgment and order as rendered is

Affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.  