Citations
- 68 Ohio St. 450
Full opinion text
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.