
    *Hoover v. Calhoun & als.
    July Term, 1860,
    Lewisburg.
    i. Contract for Sale of Wife’s Land by Husband—Case at Bar.—C contracts to sell to II a bouse and lot of ground In a town, and an out lot, the first constituting much the most valuable portion, and O sells the property as his own; and H is put In possession. C dies before the contract Is executed, and the property in the town is in fact the property of C's wife. Held;
    1. Same—Specific Performance by Wife.-C’s widow and children cannot enforce the contract against H.
    
      2. Same—Same.—H expressing his wish to have the whole contract rescinded, the court should decree It.
    3. Same—Same—Improvements.—II having ma.de permanent Improvements on the property, bnt having oifered to surrender possession; if an account is taken, the rents and profits up to the time of the decree for the surrender of the property, are to be set oft against tile said inprovements; but H is not entitled to a decree for any balance on account thereof.
    
      This was a bill for the specific performance of a contract for the sale of land filed in April, 1858, in the Circuit court of Augusta county, by Margaret S. Calhoun and others against Henry B. Hoover. It appears that in April, 1857, George A. Calhoun, the husband of the plaintiff Margaret S. and the father of the other plaintiffs, entered into a written contract with the defendant, by which Calhoun sold to Hoover his property in and around West View, consisting of a brick house upon a lot of ground containing seven acres and twenty poles in the town of West View, and a lot of land on the Parkersburg road containing six acres, in consideration of the sum of $3000, to be paid as follows: Fifteen hundred ^dollars to be paid on the 16th of April, 1858, and fifteen hundred dollars on the 15th of April, 1859. The said Calhoun agreeing to make a good and legal deed to the property when Hoover made the first payment of $1500, and gave bond with approved personal security for the second payment. And Calhoun was to give possession of the property on the 1st of August, 1857, reserving the crops growing on the land.
    Hoover was put into possession of the property in pursuance of the contract; and in February, 1858, George A. Calhoun died, leaving his wife Margaret S. and two children surviving him.
    It appears, that the lot in the town of West View, on which the house was located, was the property of Margaret S. Calhoun in her own right. ' And she with the two children of George A. Calhoun filed the bill to enforce the contract, she expressing her willingness to convey the land owned by her dower and her interest in .the other lot, upon being allowed to receive the price contracted to be paid for it. And the plaintiffs file with their bill a deed conveying the whole property, which they proffer to the defendant upon hife complying with the contract.
    Hoover answered the bill, and refused to execute the contract. He insisted that the contract was made with George A. Calhoun, for land which Calhoun undertook to sell as his own, and which the defendant supposed belonged to him, and that Mrs. Calhoun could not enforce the contract as for a sale of her land; and especially as she only proposed to confirm the contract upon the terms' of receiving the whole of the purchase money, when one of the lots purchased was admitted to be the property of her late husband. And he insisted further that the imrovements were upon the part of the property -belonging to Mrs. Calhoun; and that property constituted almost the whole value of the purchase. He therefore objected *to an execution of the contract, stated that soon after taking possession he had expended some three or four hundred dollars in permanent improvements; but that after the death of George A. Calhoun he had offered to surrender the property, and that he was still ready to give it up.
    In June, 1858, the cause came on to be heard, when the court decreed a specific execution of the contract; and after some details for carrying out the decree, directed one of the commissioners of the court to report an account showing the rights of the several parties plaintiff in the money arising from the sale. From this decree Hoover applied to this court for an appeal, which was allowed.
    'Fultz, for the appellant.
    Baldwin, for the appellees.
    
      
      Specific Performance—Compensation.—In Stearns v. Beckham, 31 Gratt. 379, the court, at page 422, cited the principal case: McComas v. Easley, 21 Gratt. 23; Hendricks v. Gillespie, 25 Gratt. 181, as cases in which the court, though having refused specific execution, decreed compensation to the proper parties, upon the ground that the court, being in possession of the case, would put an end to the controversy by giving complete relief. See also, Anthony v. Leftwich. 3 Rand. 238; Payne v. Graves, 5 Leigh 561; Bowles v. Woodson, 6 Gratt. 78; foot-note to Stearns v. Beckham. 31 Gratt. 379; foot-note to Hendricks v. Gillespie, 25 Gratt. 181; Nagle v. Newton, 22 Gratt. 814, and. foot-note.
      
      Same—Want of Mutuality.—In Wood v. Dickey, 90 Va. 163, 17 S. E. Rep. 818, the court said: “A court of equity in Virginia will not decree specific execution of a contract when there is not mutuality in both odlioation and remedy. Both parties must, by the agreement itself, have a right to compel specific' performance of it, else equity will not execute it. Moore’s Administrators v. Fitz Randolph and others, 6 Leigh 175-185; Hoover v. Calhoun, 16 Gratt. 112; Chilhowie Iron Co. v. Gardiner, 79 Va. (Hansbrough) 305-311; Cheatham v. Cheatham, etc., 81 Va. (Hansbrough) 395-403; Ford v. Euker, 86 Va. (Hansbrough) 75, 9 S. E. Rep. 500; Shenandoah Valley R. R. Co. v. Dunlop, etc., 86 Va. (Hansbrough) 346-349, 10 S. E. Rep. 239; Edichal Bullion Co. v. Columbia Gold Mining Co., 87 Va. (Hansbrough) 641-645, 13 S. E. Rep. 100; Graybill v. Brugh, 89 Va. 895, 17 S. E. Rep. 558.” But, in Central Land Co. v. Johnston, 95 Va. 223, 28 S. E. Rep. 175, suit was brought to enforce a contract for the sale of land signed by the defendant but not by the complainant. The court, at page 226, said: “In Virginia, while there have been expressions indicating a-tendency of the judicial mind to the view that the contract must be signed by both parties, as in Hoover v. Calhoun, 16 Gratt. 112, the question has remained an open one up to this time, with the exception of the case of Wood v. Dickey, 90 Va. 160, 17 S. E. Rep. 818, which is now relied on in support of the contention ■ of appellant. In that case a rehearing was allowed, and, pending the re-bearing, the case was settled and dismissed without a final decision. It cannot therefore be accepted as controlling authority in this case. Regarding the question, therefore, as still an open one in this State, the court is of opinion that it was not necessary for the contract, under consideration, to be signed by appellee to entitle him to its specific performance in equity. It was sufficient that it was signed by appellant, the party to be charged thereby; that when appellee instituted his suit to enforce specific performance of the contract he thereby in writing consented to it, and made the remedy as well as the obligation mutual.”
      Same—Common°Law Lands of Harried Women.—In Nalle v. Farish, 98 Va. 132, 34 S. E. Rep. 985, the court said: “Mrs. Nalle, being a married woman, was not competent to make a valid contract of sale of the land, and the court was without power to decree a conveyance to the heirs of Shadrach founded upon any contract made for its sale to him by her, or by her husband as her agent. Chilhowie Iron Co. v. Gardiner, 79 Va. 305; Hoover v. Calhoun, 16 Gratt. 109; Shenandoah Valley R. Co. v. Dunlop and Wife, 86 Va. 346, 10 S. E. Rep. 239; Wynn v. Louthan, 86 Va. 946, 11 S. E. Rep. 878.”
    
   ROBERTSON, J.

The question presented for decision in this .case is, whether a wife has a right, after the death of her husband, who has contracted for the sale of her land, describing it as his, to enforce specific performance by the purchaser, for her own benefit.

It is admitted that she is not bound by the agreement; and it is also admitted to be the general rule that specific performance will not be enforced unless the contract is mutually obligatory. But it is insisted that she has a right to adopt the contract of her husband, and that by filing her bill asking for its specific execution, she makes the remedy mutual, and thus satisfies the rule.

It was at one time held that a contract made by a husband for the sale of his wife’s land, might be specifically enforced against him; or rather, that he might be imprisoned until she united with him in making the title. But the weight of recent authority is against this practice, which is now almost universally regarded as ^'impolitic and absurd. See, Story’s Eq. Jur. | 731 to § 73S; 1 Bright on Husb. & wife p. 183, and the cases cited.

Upon the question whether husband and wife can enforce against a purchaser specific execution of a contract made with them for the sale of her land, much diversity of opinion exists. See. Note to $ 287 of Ery on Spec. Perfor. (Law. Lib. vol. 100) : Salisbury v. Hatcher, 2 Younge & Collyer 54 (21 Eng. ch. R.) ; Note to Howell v. George, 1 Madd, ch. R. 13; Flight v. Bolland, 4 Russ. R. 298, (3 Cond. Eng. ch. R. 675) ; and Watts v. Kinney, 3 Leigh 272.

It will also be found not to be free from doubt, whether the mutuality requisite to authorize the court to enforce specific performance must exist when the contract is made, or whether it is sufficient if it can be shown to exist at the hearing of the cause: though the preponderance both of authority and reason seems to be in favor of the proposition that a contract to be specifically enforced must be mutually binding at the time it is entered into. See, Batten on Contracts 61, (Law Lib. vol. 67) ; Fry on Spec. Perfor. p. 133, (Law Lib. Vol. 100) ; Duval v. Myers, 2 Maryland ch. R. 401; Moore’s adm’r v. Fitz Randolph, 6 Leigh 175.

But it is not necessary for the decision of this case to enter upon an examination of these questions, and no definitive opinion is expressed upon them.

It may, for the sake of the argument, be conceded that husband and wife can enforce a contract entered into with them for the purchase of the wife’s land; and that the rule as to mutuality is satisfied if it is made to appear on the hearing that mutuality then exists, although it may not have existed previously ; and it will by no means follow that a wife be permitted, after her husband’s death, to adopt and enforce, for her own benefit, his contract for the sale of her land.

*The general rule, unquestionably, is tha t there can be no decree for specific performance, except between the parties themselves, or those claiming under them in privity of estate, or of representation, or of title; for a contract can only be enforced between the parties themselves, or their representatives in interest. Dart on Vend. & Purch. p. 461.

We have not been referred to, nor have we been able to find, any authority tending to show that an exception to this rule exists in favor of a widow. That she does not come within it is manifest; for it cannot be said that, as to her own land, she is in any sense the representative of the deceased husband, or that she claims title to it under him, or in privity with him. She cannot be compelled to perform any contract he may have entered into respecting it, and it is difficult to perceive the grounds on which she should be allowed to enforce such contract for her own benefit. The court has no right to change the parties to a contract, and give to a person, who is neither party nor privy, the benefit of it. Nor can it substitute a new or modified contract in the place of that entered into by the parties, and require such substituted contract to be performed. Its proper province is to cause contracts to be executed as they are made, and by the parties making them, or their representatives in interest.

In this case the contract was made by the husband. The wife was no party to it, and was not even referred to in it. The land was described as the land of the husband; and to him the purchaser looked for his conveyance and warranty. Nor is the wife seeking to enforce the agreement as it was made. According to its terms, the purchase money should be paid to the husband, or his personal representative; while she asks that the purchaser shall be compelled to pay it to her, for her own use.

*Eor these reasons the contract ought not to be enforced against the purchaser as far as it relates to the land of the wife. And this being the case, it will not be proper to enforce it as to the portion of the land which belonged to the husband. The two parcels were embraced in one entire contract, and there is nothing to induce the belief that the purchaser would have contracted for the part belonging to the husband, if that belonging to the wife, which was the larger and more valuable portion, had not been included with it.

The decree must be reversed and the cause remanded. If the appellees desire it, an account of the rents and profits since the purchaser has been in possession under the contract, and of the value of the permanent improvements placed by him upon the property before the death of his vendor, may be taken. But it would be inequitable to render a decree in favor of the appellant for any excess of the value of such improvements over the amount of the rents and profits with which he is chargeable; because the owners of the property were willing to convey it to him upon his paying the price stipulated for with his vendor, and he refused to accept the conveyance. On the other hand, as the owners refused to agree to his proposition to rescind the contract, and to retake possession of the propert}-, they must allow him credit by the value of his improvements to the extent of the rents and profits during the whole time of his possession.

Whether an account is asked for or not, possession should be surrendered to the widow and heirs according to their respective rights. And the purchaser having expressed his willingness to have the contract rescinded, an order should be made to that effect.

Each party should' pay his own costs in the Circuit court up to the rescission, of the contract, a suit being proper to adjust the rights of the parties. But if an '^account shall be asked for, any costs which may be thereafter incurred must be paid by the party from whom a balance shall be found to be due. „

The other judges concurred in the opinion of Robertson, J.

Decree reversed.  