
    Nicholas Farley v. J. Dwight Palmer and Wife.
    Where husband and wife join in a contract for the sale of her land, and in pursuance of the terms of the contract their joint deed for the land, executed and acknowledged according to law, is placed in the hands of a third person, to be delivered by him to the purchaser upon his paying the purchase-money, the husband and wife may enforce a specific performance of the contract on the part of the purchaser.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Cuyahoga county.
    The case is sufficiently stated in the opinion of the court.
    
      John W. Heisley for plaintiff in error:
    The title of the land being in Mrs. Palmer, she is to stand in the light of the contracting party; and she being a married woman, the contract was not binding on her. 10 Ohio, 117, 305; 27 Perm. St. 292; 52 Penn. St. 400; 61 Penn. St. 314; 12 Grattan, 98; 5 Day, 492; 18 N. Y. 265.
    If the contract is not binding on her, it is not binding on Farley for want of mutuality. 6 Ohio, 486; 23 Barb. 142; Flight v. Boland, 4 Russ. 98.
    The statute in relation to the rights of married women, enabling them to contract in specified cases and for certain purposes, doe?, not authorize her to make the contract in question, as being one concerning her separate estate in which her husband had no rights or interest. The statute being subsequent to the decisions in 10 Ohio, 117, 305, it is fair to presume it was enacted with reference to them.
    The fact that Mrs. Palmer offers a deed does not change the legal quality of the contract. Mutuality requires that the contract should be binding on both sides from first to last, and not depend upon her whims or caprices — should be one under which she could be compelled to convey.
    
      The delivery of the deed as an escrow does not help the matter out. As to a married woman the delivery could have no effect until absolutely delivered to the vendee, for up to that time the delivery remains in contract, subject to conditions, and not binding on her beyond her power to recall the deed.
    
      Palmer <& Be Wolf for defendants in error:
    As to the alleged want of mutuality in the agreement:
    1. The land was the separate property of Mrs. Palmer. (See statute of 1866.) “A feme-covert with respect to her separate property is to be regarded in a court of equity as a feme-sole” 2 Story’s Eq. Jur., secs. 1390, 1394, 1395; 1 Lead. Cas. in Eq. 532; 17 Johns. 548; 20 Conn. 146. She may charge her separate property, void at law, for the purpose of binding her personally. 2 Story’s Eq. Jur., secs. 1397 and note, 1398-1401, and note 1, p. 844; 3 Parsons on Contracts, 408 and note t, p. 409 and note t, p. 410.
    2. There was mutuality in it. It was executed by the husband who, in any view, was competent to contract, and against whom an action would lie for failure to fulfil.
    3. There was perfect and complete mutuality so far as the wife was concerned. There was but one transaction. The formal execution of the deed by husband and wife. Nothing remained for her to do. The only object of the writing was to bind Farley. If he had tendered performance on his part, he could have compelled the delivery to him of the deed. Furthermore, the deed having been executed and, by agreement of all parties, delivered for Farley, to be handed to him upon his performing his agreement, he could enforce the delivery of the deed to him. Mrs. Palmer’s right was perfect without signing the memorandum. By signing it she has not lost that right.
   By the Court:

Farley, the plaintiff, seeks to reverse the judgment of the court below, decreeing the specific execution of his written contract made with Palmer and wife for the purchase of her land. At the time of making the contract a deed was executed by Palmer and wife and placed in tbe hands of a third person, and by the terms of the contract this deed was to be delivered to Farley upon his paying the stipulated purchase-money. Upon Farley’s refusal to pay the money and receive the deed at the time agreed upon, Palmer and wife brought their action for a specific execution. And now it is contended that Farley was not bound by the contract, on the alleged ground that as Mrs. Palmer, being a married woman, was not bound, there was no mutuality of obligation. We think otherwise. Mrs. Palmer was bound. She had no power to revoke the deed. The person holding the deed was the agent of both parties, and his delivery, according to the terms of the contract, without her consent, or even after her death, would have been goqd. Indeed, the authorities show, that upon fulfilment of the -condition by Farley the title would have vested in him, ipso faeto, without further delivery. The contract was executed on the part of Mrs. Palmer — the title had passed from her — subject only to the performance of the condition on the part of Farley.

Motion overruled.  