The second arose when the proofs showed that the wife was aware the contract was being signed; acquiesced in it by her conduct, and then refused to sign the deed for an ulterior motive — such as extracting the payment of a higher price. Stein v. Francis, 91 N.J. Eq. 205, 206 (Ch. 1919). In such case a court of equity would decree specific performance against the husband and require that he make adequate financial arrangements to protect the buyer against the wife's future claim for dower consummate.
When Levitin announced that he would not pay $6,600 for the property, his repudiation of his obligation under the contract excused Musicant from further performance and entitled him to consider the contract as terminated. Stein v. Francis, 91 N.J. Eq. 205 ( Ch. 1919). But Levitin urges that the act of Mr. and Mrs. Musicant in signing a contract with the Brosses, only one day after Musicant had agreed to sell to Levitin, was itself a breach of contract, and the earliest breach.
The two cases are readily distinguishable. Vice Chancellor Learning, in Stein v. Francis, 91 N.J.Eq. 205, at page 206, 109 A. 737, at page 738 said: "There is no doubt of the general power of this court to enforce specific performance of contracts to convey land and to decree that the purchase money be applied to pay outstanding liens which are by the contract to be satisfied to clear the title, or, if necessary, require compensation to be made for any part of the land to which the vendor may be unable to make title, or to require indemnity from the vendor against outstanding liens or rights which cannot be satisfied." A decree will be advised in accordance herewith.
The decree will further provide that, in case Headley fails to provide the indemnity bond, Miller may retain in his hands out of said balance of the purchase price the value of Mrs. Headley's dower right, which amount will be ascertained in accordance with our mortality tables, and will be stated in the decree. Young v. Paul, 10 N. J. Eq. 401, 64 Am. Dec. 456; Stein v. Francis, 91 N. J. Eq. 205, 109 A. 737; Schefrin v. Wilensky, 92 N. J. Eq. 109, 111 A. 660; Id., 92 N. J. Eq. 705, 114 A. 927. All parties being before the court, the decree should provide for complete adjustment of their rights.
Furthermore, it is within the undoubted power of this court to decree specific performance of such a contract with application of the purchase money to pay outstanding liens, or require compensation for deficiencies or indemnity. Stein v. Francis, 109 A. 737, 91 N. J. Eq. 205. The other objection while highly technical, is more troublesome.
That is because the payment of the debt is the only obligation of such a contract. It has also been held that a contract for the sale of land in certain circumstances may be specifically enforced against the vendor before the day named for performance; but that was only after the contract had been wholly repudiated by the vendor. Stein v. Francis, 91 N. J. Eq. 205, 109 A. 737. Here there has been no repudiation further than a refusal to perform before the day specifically named. Wall v. Simpson, 6 J. J. Marsh. (Ky.) 155, 22 Am. Dec. 72, has been cited in support of the bill; but in that case, while the vendee agreed to pay on or before a specified date, the vendor was not required by his contract to surrender possession at the time of final payment, and the provision in the contract for the vendor to retain possession for a specified time after the vendee should have paid the full purchase price was by the court treated as intended for the protection of the vendor in case of payment before the specified date.
Here, there was an exchange of properties, and the clause inserted was for the benefit of both parties, namely, that if either party was unable to perform, the contract was to be at an end, and neither party was to be liable to the other thereunder; and, in order to effectuate this, as the party of the first part received a deposit of $500, which was paid as the difference between the values of the properties to be exchanged, this sum was to be returned by the defendants to the complainants. The defendants cite Bateman v. Riley, 72 N. J. Eq. 316, 73 A. 1006, and Stein v. Francis, 91 N. J. Eq. 205, 109 A. 737, which support the rule that where the wife of the vendor has not signed the contract of sale and refuses to sign the deed, neither abatement of purchase price nor indemnity against the inchoate right of dower of the wife will be decreed, unless the wife's refusal has been induced by the husband. The situation here presented, while somewhat different, does not take the case out of the above rule.
It is not claimed that this repudiation of the contract by the solicitor was not directed by the vendees. In Stein v. Francis, 91 N. J. Eq. 205, 109 Atl. 737, I determined that a vendee's bill for specific performance, filed before the day for performance, was not prematurely filed, if the vendor had absolutely repudiated the contract. Obviously the same principles there discussed are applicable to a vendor's suit after absolute repudiation by the vendee. Indeed, one of the authorities there cited was a vendor's suit filed after repudiation of the contract by the vendee and before the contract day for performance.
It is true, as defendants contend, that it does not appear that Mariove has. induced his wife to refuse to join in the conveyance of the property; in fact, it does not appear that she has ever refused to do so, and her execution and acknowledgment of the deed is evidence of her willingness to do so. And therefore, adopting the remedy suggested by the Chancellor in Hulmes v. Thorpe, supra, a decree will be advised, directing Mariove to deliver to complainants a deed executed by himself and wife, and, if he is unable to do so, then the circumstances of the case and the active participation of Mrs. Mariove in the transaction require that the practice of abatement in the purchase price or of indemnity adopted by Chancellor Runyon in Cooke v. Watson, 30 N. J. Eq. 345, and followed in Farrell v. Bork, aliirmed in 76 N. J. Eq. 615, 79 Atl. 897, Stein v. Francis, 109 Atl. 737, and Schefrin v. Wilensky, 111 Atl. 660, should be followed here, and as alternative relief the defendant Mariove should be directed to deliver to complainants a deed for the premises, subject to the inchoate right of dower of his wife, in the event of a refusal by his wife to join in the conveyance; and in the latter event a decree will be advised, directing the payment into court of an amount to be determined on the settling of the terms of the decree, to indemnify complainants against any claim of dower by Mrs. Mariove, or that, instead of paying the amount into court, complainants may retain out of the purchase price the amount of the ascertained value of the consummated dower right of Mariove's wife. The terms of the decree may be settled on three days' notice.
ay outstanding liens which are by the contract to be satisfied to clear the title, or, if necessary, require compensation to be made for any part of the land to which the vendor may be unable to make title, or to require indemnity from the vendor against outstanding liens or rights which cannot be satisfied, neither indemnity nor abatement from the purchase price should be decreed on account of an outstanding inchoate right of dower of the wife of the vendor who has not joined in the contract to sell, and who refuses to join vendor in the conveyance, unless it should be shown that the vendor has induced his wife to refuse to release her dower right. The possibility that a decree against the husband for abatement or indemnity might occasion such a coercive influence on the wife as to induce her to release her dower against her will has been thought a sufficient reason for denying relief of that nature, unless her refusal to release has been the result of her husband's procurement. In Stein v. Francis, 109 Atl. 737, the decree ordered indemnity by the vendor, and directed that upon his failure to indemnify there should be an abatement from the purchase price, notwithstanding the refusal of the wife to sign the deed was in no way attributable to the conduct or influence of the vendor. In that ease the wife had by her conduct, not only unequivocally consented to the sale, but had measurably Induced her husband to contract to sell, and her subsequent refusal to join in the conveyance was obviously due to an advance in the market value of the land.