
    Harrigan’s Appeal. [Harrigan v. McAleese.]
    A bill in equity to decree specific performance of a contract for the sale of land set forth the contract, possession, improvement, tender of the balance of the purchase money, demand of a deed and refusal by defendant, and prayed that defendant be ordered to execute a good and sufficient deed for the premises, clear of all incumbrances, and that the court make such further orders as may be required. The defendant answered that the contract was procured by fraud and misrepresentation and that it was in itself unconscionable; and further alleged the refusal of the wife to join in the deed. He further offered to refund the money paid and asked for a rescisión of the contract and an account of the rents, issues and profits. Upon replication filed, a master was appointed who reported that there was no fraud or misrepresentation and that the contract was not unconscionable; but, as the wife refused to join in a deed, that the decree could not be made as broad as the prayer of the bill, and accordingly recommended a decree ordering the defendant to make a deed without the wife; and, as the defense of fraud was unfounded but had added to the expense of the proceeding, two-thirds of the costs were recommended to be placed upon the defendant. The defendant excepted that the decree could not be made without an amendment of the record. The court dismissed the exceptions, made the decree against the defendant as recommended and ordered the plaintiff to pay one-third of the costs and the balance of the purchase money, with interest. Seld, on appeal by the defendant, that the decree must be affirmed.
    Oct. 10, 1888.
    Appeal, No. 149, Oct. T. 1888, from a decree of O. P. Armstrong Co., dismissing exceptions to a master’s report on a bill in equity by George G. McAleese against Cornelius Harrigan, at March T. 1886, No. 351.
    The bill, filed Feb. 26, 1886, averred:
    1st. That your orator, heretofore, viz.: Oct. 25, 1879, purchased from said Cornelius Harrigan, a certain house and lot of ground on Forty-fourth Street, in the City of Pittsburgh, county of Allegheny, and state of Pennsylvania, for the consideration of $700, and paid him ten dollars cash in hand on account.
    2d. That, thereupon, said Cornelius Harrigan gave your orator a receipt for said ten dollars, dated on said October 25, 1879, on account of said purchase money for said house and lot of ground fronting oh said Forty-fourth Street [describing the lot and reciting the terms of the receipt or agreement, which was made a part of the bill],
    3d. Tour orator says that he did, thereupon, enter into possession of said house and lot of ground, under said article, or receipt and writing above mentioned, and has been in possession thereof ever since, and still is in possession of the same, under said agreement and receipt.
    4th. Tour orator further says that he paid to said Cornelius Harrigan, on October 11, 1882, part of the purchase money and interest, viz.: the sum of $551.06, and a receipt for the same was given him, and was endorsed on said agreement, a copy of which receipt is hereto appended, and made part of this bill of complaint.
    5th. Tour orator further says that at the time of paying said sum of $551.06, he tendered the balance in full, principal and interest, of said purchase money to said Cornelius Harrigan, and demanded his deed for said house and lot of ground; but said Cornelius Harrigan refused to give him a deed, and still refuses to do so, although your orator was and still is in possession of said house and lot of ground. And your orator says that he has ever since been ready and willing, and still is ready and willing to pay said balance of purchase money to said Cornelius Harrigan at any time when he will make and deliver to your orator a proper deed for said lot of ground and premises as he agreed to do.
    6th. • That the recovery of damages in this case would be an inadequate remedy.
    Your orator, therefore, says he needs equitable relief, and therefore prays your Honor to order and decree as follows : 1st. That said Cornelius Harrigan be ordered to appear and answer this bill of complaint. 2d. That said defendant be ordered and decreed to make, execute and deliver to your orator, his heirs and assigns, forever, a good and sufficient deed for said lot of ground and premises, clear of all incumbrances. 3d. And that your Honor will make such further orders and decrees from time to time as may be required in this case. 4th. And that said defendant pay all costs of these proceedings.
    The answer averred:
    1st and 2d. That paragraphs Nos. 1 and 2 are not true in fact, for the reason that the alleged purchase was procured by the said plaintiff by fraud, misrepresentation and was, in itself, unconscionable, and will not be enforced in a court of equity, for the following reasons: That this defendant had expended over $2,200.00 in the purchase of property embraced by this bill, and the same was, at the date of the alleged purchase, of that value, and the plaintiff, well knowing the fact of the value of the property, stated to this defendant that great assessments of taxes and other city improvements were about to be made which would entirely sweep away the said property, which statements he knew to be untrue, and fraudulently used the same to induce this defendant to sell. That as soon as this defendant’s wife knew of this said alleged sale, she dissented from the same and notified the plaintiff that she would not join in the deed and offered to repay to him the ten dollars received by this defendant, and all expense he, the plaintiff, had been at. That the consent of this defendant’s wife has never been and cannot be obtained to the said contract nor will she join in a deed to the plaintiff therefor.
    3d. Paragraph No. 3 is true so far as it relates to the possession of the property, which possession and use has far exceeded in value the whole alleged purchase money of $100, with its interest to this date.
    4th and 5th. That it is true that on Oct. 11, 1882, the said plaintiff came to your respondent’s house in the Armstrong county, with three other men late in the evening, and after being informed of this defendant’s wife’s refusal to sign any deed for the premises, obtained this defendant’s name to a receipt for $551.06, which your defendant did not then, nor has he since understood, but was forced and coerced into signing the said paper by the said plaintiff and his friends, against the protest of this defendant’s wife, and without any security for the payment of the balance of purchase money nor has the plaintiff since offered to secure the same.
    6th. That the plaintiff has been more than repaid all damages and expenses arising -from the said contract, and that it would be unconscionable, unjust and inequitable to enforce the same, but that this defendant is and has, at all times, been willing and now offers to repay the sums of ten dollars, five hundred and fifty-one dollars and six cents, with their interest, a,nd claims that the plaintiff should account to him for the rents, issues and profits of the property embraced by the bill, and that the contracts alleged in the said bill be rescinded and set aside at the costs of the plaintiff, and that this Honorable Court will be pleased to grant unto this defendant such other, further and greater relief as to your Honor shall seem meet.
    Ross Reynolds, Jr., Esq., was appointed master and examiner, after replication filed. He reported, inter alia, as follows:
    “ On Oct. 25, 1879, after some preliminary negotiation regarding price and manner of payment, Harrigan agreed to sell the lot in dispute to McAleese for seven hundred dollars, and gave him the following receipt, which is the only written evidence of the contract, viz:
    “ ‘Pittsburgh, October 25th, 1879.
    “ ‘ Received from Gr. Gr. McAleese, ten dollars on account of purchase money for an house and lot fronting on Eorty-fourth Street, city of Pittsburgh, adjoining the property of- Mr. Rutter on one side, and Mr. Bray on the other side, the balance of the purchase money to be paid in three years, with interest six per cent. — the balance of the purchase money is $690 — the deed to be made clear of all incumbrances, Mr. McAleese to get possession from date.
    “ ‘ Witness: ' ‘ Cornelius Harri&an. [Seal.] ’
    “ ‘ B. Byrne.’
    “ Immediately after signing the receipt and receiving the ten dollars hand money, Harrigan gave McAleese possession of the premises, and he has continued therein ever since. Somewhat less than six months after the purchase, Harrigan having failed to come down with a deed and mortgage, as he had agreed to, McAleese and a man named Eagin went to defendant’s residence in Armstrong county, tendered him six months’ interest and demanded a deed. This much is undisputed, but the other facts that occurred at this meeting are directly at variance; however, accepting the statement of Harrigan as true, it at least shows that it was the first time, so far as the evidence discloses, that he showed any inclination to repudiate the bargain.
    “Nothing else seems to have occurred in relation to this transaction until October 11, 1882, shortly before the expiration of the three years, at which time the balance of the purchase money became due, when plaintiff, in company with Erank Kohler, Esq., an attorney from Butler, Pa., Mr. John Hughes and Mr. Byrnes, went to the residence of defendant in West Franklin township and tendered him the balance of the purchase money in full, with the interest thereon, and demanded a deed as called for in the receipt or article of agreement of October 25th, 1879.
    “Harrigan was willing to perform his part of the contract; but his wife, Bridget Harrigan, utterly repudiated the agreement to sell the lot and refused to join in the deed, whereupon the peculiar tender of two-thirds of the purchase money was made to defendant, and the remaining third to his wife, Bridget Harrigan. The latter refused to accept the same, but defendant accepted the portion tendered to him and gave the following receipt therefor, endorsed on original receipt or agreement:
    “ ‘ Franklin Township, Armstrong County, Pa.,
    October 11th, 1882.
    “ ‘ Received of Geo. G. McAleese the sum of $551.06, being the consideration in full of the lot.
    “ ‘ Cornelius Harrigan.’
    “ ‘ Frank Kohler,
    “‘Notary Public.’ [Seal.]
    “ Mrs. Harrigan, when the tender was made to her, said she wanted more time to think over it, and as they had no proper deed that day, made an arrangement with Kohler to come back in a few days with a deed properly filled out, and her husband said he thought that when Kohler came the deed would be executed. A few days afterward Kohler did go out with a deed properly filled up, which Harrigan was willing to sign but his wife refused to join, therein. It is true, the statements of Harrigan and his wife do not fully coincid'e with the above finding, but the preponderance of evidence is such as to satisfy the master that above is a true statement of the facts as they occurred.
    “At the time of the purchase by McAleese, there was erected on the lot in controversy one small brick house with basement cellar, the cellar and lot being about four feet under grade. The lot was filled up to grade by McAleese. He also completed the filling up of the cellar dug by Harrigan, as required by the board of health; also put in a water closet, there being none on the premises. After the purchase, McAleese built a kitchen to the brick house, sixteen feet square, and put up a frame house of three rooms on the back part of the lot, and exhibited before the master receipts, etc., amounting to $605.00 in the way of improvements and repairs since he has had possession thereof, and has paid taxes aggregating $269.13, including the year 1886.
    “We may add, in conclusion, that there is no evidence whatever that Bridget Harrigan, the wife of defendant, acted in collusion with her husband; the sale was made without her knowledge and consent, and in refusing to sign the deed she simply exercised an undoubted right vouchsafed her by the law.
    
      “It will scarcely be denied that in Pennsylvania specific execution of an agreement to sell land will not be decreed against a vendor, a married man, whose wife refuses to join in the deed, unless the vendee be willing to pay the full purchase money and accept a deed without the wife joining therein. This principle was established as far back as Clark v. Sevier, 7 Watts, 107, where it is put on the gi’ound that the process of a court of chancery shall not be used to extort an unwilling consent from a wife in a matter which the law says her volition shall be wholly without trammel. Says Gibson, O. Í., in the above case: ‘ It would be mockery to tell her she is free to act at her pleasure while the machinery of a court is put in motion to constrain her by the strongest sympathies of her nature.’
    “ The law, as above enunciated, has never been shaken, but has more than once been reaffirmed. In Burk’s Appeal, 75 Pa. 141, one of the latest cases, Mercur, J., says: ‘ It must now be considered the settled law of this commonwealth that specific performance of an agreement to sell land will not be decreed against a vendor who is a married man, and whose wife refuses to join in the conveyance so as to bar her dower, unless the vendee is willing to pay the full purchase money and accept the deed of the vendor without his wife joining therein.’
    “As the testimony in the case developed, it soon became apparent that the plaintiff has, in his bill, prayed the court to decree more than the law would justify, for, under the authorities just quoted, it is perfectly plain that we cannot compel the specific execution of the agreement in this case, under the facts as found, by compelling the wife of Cornelius Harrigan to join in the deed.
    “ However, the attorneys of plaintiff, recognizing this fact, proposed, on the argument before the master, to accept a deed from the vendor alone and pay the purchase money in full, as it seems the vendee may do under the authority of Burk’s Appeal, supra.
    “We can, therefore, pass to the other questions arising in the case, and see if there is such an equitable presentation of fact as would move a chancellor to decree specific performance; and, in this consideration, several questions present themselves, viz.: 1st. Were there any misrepresentations used, calculated to deceive Harrigan, the vendor? 2d. Was he imposed on by any fraudulent act of the vendee in the purchase of this lot? 3d. Was the bargain a con-scion able one ?”
    The master found all three of the above questions against the defendant, and proceeded:
    “ This leaves nothing to dispose of but the question of costs. Plaintiff, in his testimony, says: £ when I offered Harrigan the $690 and interest as a tender on Oct. 11, 1882, he offered to give a deed as far as he was concerned.’ This is all in law he could be required to do, upon the refusal of his wife to join in the deed; and the plaintiff, attempting to enforce more, must do so at his own cost. However, the defendant, in his answer, instead of relying upon this undoubtedly good defence, raises the additional defences of fraud, misrepresentation, etc., which necessitated the taking of a great deal of testimony and resulted in the master finding that the allegations were without foundation. It is thus seen that both plaintiff and defendant must bear a certain measure of blame, and it is both equitable and just that they should likewise pay a proportion of the costs. As the testimony taken by the examiner mainly related to questions raised in defendant’s answer, he must pay the larger portion of the expenses incurred thereby. Ve think an equitable apportionment would be that plaintiff pay one-third, and that defendant pay two-thirds thereof.
    “ In pursuance of foregoing findings, the master would recommend that your Honorable Court decree that the defendant, Cornelius Harrigan, alone, within thirty days from date of decree, execute and deliver a deed of conveyance to George McAleese, the plaintiff, in fee simple, of the premises mentioned in the receipt or agreement set forth in the pleadings and dated October 11, 1879; that the plaintiff, upon receiving from said defendant, alone, such conveyance, in fee simple, of said premises, do pay to Cornelius Harrigan, the defendant, the sum of two hundred and thirty dollars with interest from October 11, 1879, to the date of filing the bill; and that the plaintiff pay one-third the costs and the defendant two-thirds thereof, the costs to include a master’s fee of $75.00.”
    The defendant filed the following exceptions:
    1. The bill prays for specific performance, and the facts averred in the bill as well as the prayers are consistent only with a decree to embrace the wife’s signature to the deed, and such a decree not being grantable under the bill, in the absence of any amendment, the master erred in reporting a partial specific performance but should have reported that the bill be dismissed. 2. Under the averments and prayers of the bill, the master erred in reporting anything but a dismissal of the bill under the evidence. The master erred, 3, in failing to find that the contract embraced by the bill was unconscionable; 4, in finding that the defendant was guilty of any wrong, negligence or neglect] 5, in finding that Cornelius Harrigan should execute the contract alone, there being no averment or prayer in the bill to that effect and nothing on the record to show any agreement to accept of any such execution; 6, in reporting in favor of plaintiff to any extent, or finding any costs against the defendant on the intimation of plaintiff’s counsel in the argument that a qualified execution would be acceptable : had the bill and prayers originally filed so averred, peradventure no defence would have been made; 7, in recommending that the defendant pay any part of the costs ; 8, in recommending any decree in favor of plaintiff, for the reason that he had not tendered any of the purchase money previous to filing his bill.
    The opinion of the court was as follows, by Neale, P. J.:
    “And now, to-wit, Feb. 6, 1888, this canse having been heard upon argument of the exceptions to the master’s report, and, upon further consideration of the facts, we find that the master has ably-considered the evidence before him and has fairly and equitably discharged his duty; that the report filed by him is fully sustained by the evidence and the law.”
    The court thereupon dismissed the exceptions and afterward entered the following decree:
    “And now, to-wit, June 18, 1888, this cause came on to be heard upon plaintiff’s motion for final decree, and was argued by counsel, whereupon it is now adjudged, ordered and decreed that the contract recited in the bill be specifically performed according to the true tenor and effect thereof, so far as George G. McAleese and Cornelius Harrigan are concerned, and that said Cornelius Harrigan, defendant, make and execute and, upon payment of the purchase money hereinafter mentioned, deliver to George G. McAleese a deed for the lot described in the bill, with clause of special warranty, and without the signature of the wife of the said Cornelius .Harrigan, the said deed to be made within thirty days from this date, and that said Cornelius Harrigan pay two-thirds of - the costs; and that said George G. McAleese pay to the said Cornelius Harrigan, in addition to purchase money heretofore paid, the sum of $315.26, being the residue of purchase money with interest to the filing of this bill, which he is hereby adjudged and decreed to pay, and that he, the said George G. McAleese, pay the one-third of the costs.”
    
      The assignments of error specified the action of the court, 1, in overruling the eight exceptions filed by the defendant to master’s report, and. in confirming the report and in ordering decree in accordance therewith as per opinion of court; 2, in decreeing in favor of plaintiff a partial execution of the contract and in not dismissing plaintiff’s bill; 3, in imposing any part of the costs on the defendant; '4, in making a general decree dated and filed June 18, 1888.
    
      E. S. Golden and H. L. Golden, for appellant.
    The bill contains but a single prayer, viz. No. 2. The other prayers are simply in aid of or ancillary to the specific relief sought. There is no prayer for general relief. The facts disclosed by the bill, if proved, were consistent with the relief sought. A decree under the specific-prayer would have depended on the averments of the bill and the proofs, and have been sustained by them alone, whilst the decree made by the court is contrary to the prayer of the bill and would not be sustained by the averments and proofs alone but depends, for its force and vigor, upon plaintiff’s verbal assent, an element not found in the original cause and which the court could not impose, save at plaintiff’s option. Moreover, a decree under the specific relief prayer of the bill would have conveyed to plaintiff not only the title of Cornelius Harrigan but that of his wife, and this is excluded by the decree of the court itself. Therefore, that decree should not have been made at all; but, if made, it should have been introduced by a proper amendment to the bill and the plaintiff charged with the costs up to that date; and this would cover all costs, as the consent to accept such a decree was first made known upon the final argument of the case before the master.
    Where the prayer does not extend to embrace all the relief to which the plaintiff may, at the hearing, show a right, the deficient relief may be supplied under the general prayer, yet such relief must be consistent with that specifically prayed as well as with the case made by the bill. Thomas v. Ellmaker, 1 Pars. 98; Passayunk Building Association Ap., 83 Pa. 441.
    In Burk’s Ap., 76 Pa. 141, this court took no account of the consent of counsel to accept the partial decree except so far as to induce a reversal of the judgment and remit the case to the court below for such action in the premises as might seem best, and it is presumed that the court below had the record properly amended so as to exhibit a basis for their decree. Besides that case contained a prayer for general relief.
    In equity, costs do not always follow a decree against a party. They rest on the sound discretion of the court and are to be awarded or refused according to the justice of each particular case. 3 Dan’l Ch. Pr. 2; G-yger’s Ap., 62 Pa. 80.
    Costs cannot be withheld from a successful party in a case where he seems to be entitled to them unless some sufficient reason for such action is apparent. Biddle’s Ap., 6 Cent. R. 903; s. o. 19 W. N. C. 219.
    In the present case, Cornelius Harrigan was the successful party, he having offered to do the very thing ordered to be done, and, in order to impose costs on him, the reason must be apparent. The master places it upon the grounds that he had set up the unconscionable character of the contract which he had failed to prove. In the light of the rule of equity that it requires far less strength of testimony to induce a chancellor to refuse specific performance than it does to decree it, we think the defendant did not fail in that; but, waiving this question, the defendant has the right, as well in equity as at law, of protecting himself by a suggestion of as many defenses as he deems himself entitled to, and this without liability for costs. Gyger’s Ap., supra; Maguire’s Ap., 102 Pa. 120.
    
      D. W. Bell, with him Buffington & Buffington, for appellee.
    The receipt and agreement called for a deed from defendant and did not include his wife. Her inchoate dower was not an encumbrance. Perhaps it might never vest. At most, it was an estate, not a lien or encumbrance. Schall’s Ap., 40 Pa. 176.
    Our bill, beside praying for general relief, asked just what the court decreed us, viz: a deed from the defendant. This decree was fully sustained by the authorities. Burk’s Ap., 75 Pa. 146; Riesz’s Ap., 73 Pa. 490; Corson v. Mulvany, 49 Pa. 100.
    As to costs : ¥e filed our bill. The master has charged us, wrongfully, as we think, with interest on the purchase money up to the time of filing the bill. The defendant denied our equities and repudiated the contract, alleging fraud, misrepresentation and an unconscionable price. If he had come in, on the filing the bill, and offered to make us a deed, his wife not joining, and we had refused to accept it, then he might complain. Under the circumstances, the court should have imposed the whole costs upon the defendant.
    Oct. 29, 1888.
   Per Curiam,

¥e agree with the court below that the report of the learned master was well considered, and fully sufficient to support the decree made upon it.

The decree is affirmed, and the appeal dismissed at costs of appellant.  