Opinion
08-27-1926
COULTER et ux. v. STERN et ux.
Cole & Cole, of Atlantic City, for complainants. Cassman & Gottlieb, of Atlantic City, for defendants.
Bill for specific performance by Harry Coulter and wife against William Stern and wife. On final hearing. Decree in accordance with opinion.
Cole & Cole, of Atlantic City, for complainants.
Cassman & Gottlieb, of Atlantic City, for defendants.
INGERSOLL, Vice Chancellor. Bill is filed against husband and wife for the specific performance of a contract for the sale of certain real estate, which contract is signed by the husband only. The bill was dismissed so far as the wife is concerned. The husband admits his willingness to execute a deed.
The question for consideration is whether complainants are entitled to a decree, with either an abatement or indemnity for the purchase price, or indemnity against the inchoate dower of the wife. The language of Vice Chancellor Learning in Bateman v. Riley, 72 N. J. Eq. 316, at page 318, 73 A. 1006, 1007, is here applicable.
"It has been the uniform practice of this court to refuse to decree the specific performance by a husband of a contract for the sale of land, with either abatement from the price or with indemnity, where a wife has not joined in the contract of sale, and refuses, of her own volition, to join in a deed. Young v. Paul, 10 N. J. Eq. (2 Stockt.) 401, 418 ; Hawralty v. Warren, 18 N. J. Eq. (3 C. E. Gr.) 124, 128 ; Pinner v. Sharp, 23 N. J. Eq. (8 C. E. Gr.) 274, 282; Reilly v. Smith, 25 N. J. Eq. (10 C. E. Gr.) 158, 159; Peeler v. Levy, 26 N. J. Eq. (11 O. E. Gr.) 330, 335; Blake v. Flatley, 44 N. J. Eq. (17 Stew.) 228, 229 [10 A. 158, 14 A. 128, 6 Am. St. Rep. 886]; McCormick v. Stephany, 61 N. J. Eq. (16 Dick.) 208, 224 ."
The complainants insist that, in this case, Schefrin v. Wilensky, 92 N. J. Eq. 109, 111 A. 660, should be followed. Not so. In that case the court was satisfied that the refusal of the wife was not her own act, but was brought about by the connivance of her husband. In the present case the court does not find the facts to be as found in the cited case.
Complainant may take a decree for conveyance from the husband, without abatement or indemnity, or the bill will be dismissed.