
    Wingate v. Hamilton and Another.
    
      A., in 1850, bound himself by title-bond to B., to convey to him certain town lots by a good and sufficient warranty deed, on the payment of the first instalment of the purchase-money, &c. Before tho bond was executed, an agent of A., without his knowledge, had sold one of the lots to G. In a suit by B. against A., for specific performance—
    
      Held, that A. could not be compelled to execute to B. a deed for the lot which had thus been sold by A.’s agent.
    
      Held,, also, that B. had the option to take a conveyance of the lots to which A. could not make him a title, and have an abatement of the purchase-money as to the one sold to G.; or to abandon the contract altogether.
    
      Held, also, that it was requisite, under the bond, that the deed from A. to B. should contain a relinquishment of A.’s wife’s dower, and that, in the decree for specific performance, it should have been provided that her dower should thus be relinquished, and that, in the event of her refusal, there should be a proper abatement of the purchase-money.
    APPEAL from the Clay Circuit Court.
    Wednesday, November 28.
   Perkins, J.

Bill in chancery, under the old practice, for the specific performance of the condition of a bond reading as follows:

« Know all men that I, William R. Hamilton, of the county of Peoria, state of Illinois, do hereby bind myself, my heirs, &c., to make unto Robert M. Wingate, of Clay county, Indiana, a good and sufficient warranty deed to the following lots in Bowling- Green, Clay county, Indiana, viz.: Out-lots numbers one and twenty-seven, on the plat of said town. Also, lots numbers eight, and three, and four, in block number six; and lot number five in block number three.

“ Now, the above obligations are upon these conditions, viz.: The said Robert M. Wingate has this day given to said Hamilton two notes, each for 125 dollars, the first payable on the 25th of December next, and the second on the 25th of December, 1851. Now, if the said Wingate pays the first of said notes when due, and gives such personal security for the payment of the other as said Hamilton may be satisfied with, then said Hamilton shall convey to said Wingate the above-described property; otherwise,” &c. “ August 26, 1850.

It is hereby stipulated that the said Hamilton shall still be bound to make the deed above described, if said Win-gate is ready, at Bowling-Green, and remains so until a demand is made to comply with his part of the agreement. August 26,1850. William R. Hamilton.”

The bill shows that Wingate was ready, at Bowling-Green, on the coming due of the first note, to perform ail things required of him by the contract, but that Hamilton failed to execute, or offer to execute, a deed. It further alleges that Hamilton, on the 17th of October, 1850, in fraud of the complainant’s right, sold said lot number eight to one McCarty, who resold the same to one John Carr for 600 dollars. It charges that McCarty knew of the previous purchase by complainant. It alleges that complainant had been in possession of the lots named, except a part of that sold to Me Carty, and had made valuable improvements. The bill further shows that a suit was commenced against Hamilton, soon after his default, the papers in which were destroyed by a fire which consumed the clerk’s office. It makes Hamilton and Me Carty parties, and prays for special and general relief.

Me Carty and Hamilton answered, and their answers, for the purposes of this investigation, may be taken as compíete denials of the allegations in the bill.

The cause was submitted to the Court upon the pleadings, proofs, &c., and a decree rendered which will be noticed as we proceed.

The evidence proved the bond as set out in the bill, and that the complainant had, at the proper time, fully complied, or offered to comply, with the obligations on his part.

But it was further proved that the agent of Hamilton, at Bowling- Green, had sold said lot number eight to McCarty, prior to its sale by Hamilton himself, who was at Peoria, Illinois, to Wingate; that McCarty paid, at his purchase, a part of the consideration, took possession and made improvements, and was in possession when Win-gate left Bowling- Green for Peoria, to make the purchase of Hamilton. The value of lot number eight, unimproved, and the value of McCarty's improvements, were shown, and the price for which he sold to Carr.

It appears in the pleadings and evidence, that said Hamilton had a wife, who is still living.

The Court decreed that Hamilton should convey to Wingate all the lots named in the bond, except number three, which seems to have been omitted by mistake, and said lot number eight; that for that Wingate should be credited on his notes for the whole 110 dollars, the proved value of said lot, and that on the failure of Hamilton to convey, a commissioner might be appointed, &c. The decree did not require Hamilton's wife to join in the deed, or provide for any deduction in the amount to be paid by Wingate, should she refuse so to join.

Wingate complains of this decree, because it does not include said lot number eight. But the decree in this particular is right. Hamilton could not make the title to that lot to Wingate, because it was, previous to the purchase by the latter, legally sold to Me Carty; and as this fact was known to Wingate, had he obtained the legal title, he would have held it only as a trustee for Me Carty.

J. P. TJsher, for the appellant.

It thus being impossible for Hamilton to convey to Win-gate all the lots purchased by the latter, the most that Wingate could do was to take a conveyance for the portion that Hamilton could make title to, and have an abatement of the purchase-money as to the remainder. He had his election between this course and an abandonment of the contract altogether. 2 Story’s Eq., pp. 105,106, s. 779.

Wingate also complains of the decree, because it only provided for a deed from Hamilton, without the relinquishment of dower by his wife,, and made no provision for an abatement of the purchase-money, on her refusal to join.

This complaint is well founded. The contract required a deed with the relinquishment of dower, if a right to dower existed. Linn v. Barkey, ante, p. 69. Wingate might have accepted a deed from Hamilton alone, and relied upon his covenants. And had he done so, he could not have recovered damages till he had been disturbed in his possession; though according to the case of Baker v. Railsback, 4 Ind. R. 533, he might, in that state of facts, have extinguished the inchoate dower right, for a reasonable sum, and set it off against unpaid purchase-money. ,

But Wingate “was not bound to receive a deed, even with general warranty, unless the wife joined in the conveyance, extinguishing her contingent interest.” Rawle on Covenants for Title, 139. Hence, if Wingate demanded such a deed, and Hamilton could not make it, he should submit to a proportional abatement in the purchase-money, on the former accepting a deed without such relinquishment. And in such an application to a Court as the present case presents, for a deed, it might be proper to join the wife with the husband in the suit, that her rights might, if possible, be settled and barred in the proceeding.

Per Curiam.

The decree is reversed with costs. Cause remanded, &c.  