Allison v. Mackey, 10760.

• Decision Date: 25 January 1951
• Docket Number: No. 10760.,10760.
• Citation: 188 F.2d 983,88 US App. DC 154
• Parties: ALLISON v. MACKEY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

88 US App. DC 154, 188 F.2d 983 (1951)

ALLISON v. MACKEY et al.

No. 10760.

United States Court of Appeals District of Columbia Circuit.

Argued December 15, 1950.

Decided January 25, 1951.

Mr. James C. Toomey, Washington, D. C., with whom Mr. Richard A. Mehler, Washington, D. C., was on the brief, for appellant.

Mr. Crandal Mackey, Washington, D. C., for appellees. Mrs. Mary Mackey entered an appearance pro se.

Before EDGERTON, WILBUR K. MILLER and FAHY, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

The appellant, Ethel K. Allison, sued Crandal Mackey and Mary Mackey, his wife, in the United States District Court for the District of Columbia for specific performance of a contract to sell and convey real estate. Mrs. Mackey had not signed the contract. Her husband, who had title to the realty in question, moved to dismiss the complaint on the ground "* * * that the Court has no power or jurisdiction to decree specific performance herein on the part of either of the defendants who are husband and wife, where the wife refuses to consent to the sale of the real estate involved or to join in any deed for that purpose. Nor can the husband be required to execute a deed to the property subject to the right of dower, even though the purchaser would pay the full price and take the property subject to the dower of the wife."

Appellant filed a memorandum of points and authorities in opposition to the motion to dismiss in which inter alia she said, "* * * the Plaintiff has offered to and is ready, willing and able to carry out her part of the contract and to accept a deed from Defendant, Crandal Mackey, subject to any right of dower existing in the Defendant, Mary Mackey. The Plaintiff in this case does not seek indemnity from Defendants because of Defendant's wife's inchoate dower interest, * * *."

The District Court entered the following order:

"Upon consideration of the pleadings, oral argument and points and authorities in support and in opposition to the motion of defendants to dismiss the complaint, and it appearing to the satisfaction of the Court that the defendant wife did not sign the contract of sale, it is by the Court, this 9th day of June, 1950,

"Adjudged, Ordered and Decreed that the motion to dismiss be and the same is hereby granted."

This appeal is from that order.

Had it stood alone, the complaint should have been dismissed, as it showed the wife was not a party to the contract, and yet prayed specific performance by both defendants; and did not by its own terms show the plaintiff's willingness to accept a conveyance from the husband alone, subject to the wife's inchoate right of dower, nor did it reveal that the plaintiff did not seek indemnity against the dower nor abatement of price if it remained outstanding. These matters do appear, however, in the appellant's memorandum of points and authorities in opposition to the motion to dismiss, from which we have quoted above. This memorandum was presented to and not excluded by the District Court. Moreover, that it was actually noticed and considered by the trial judge is shown by the order of dismissal from which the appeal is taken. That being true, the motion to dismiss was required by Rule 12(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to be treated as a motion for summary judgment, if the ground of the motion was "failure to state a claim upon which relief can be granted". That such was the basis of the motion is shown by the excerpt from it which we have reproduced above. It follows that the statements contained in the plaintiff's points and authorities, that she would accept a conveyance in which the wife did not join, and that she did not seek indemnity because of the outstanding dower interest, were properly before the court in the consideration of Mackey's motion to dismiss, since the motion was required to be...