Reilly v. Cullinane, 3787.

• Decision Date: 05 March 1923
• Docket Number: 3787.
• Citation: 287 F. 994
• Parties: REILLY v. CULLINANE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

287 F. 994

REILLY v. CULLINANE.

No. 3787.

United States Court of Appeals, District of Columbia.

March 5, 1923

Submitted October 18, 1922.

Appeal from the Supreme Court of the District of Columbia.

L. A Bailey, of Washington, D.C., for appellant.

G Percy McGlue, of Washington, D.C., for appellee.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and SMITH Judge of the United States Court of Customs Appeals.

SMITH Acting Associate Justice.

On the 24th of February, 1920, a married man, William P. Cullinane, agreed in writing to convey to Elizabeth M. Reilly a good record title to certain real estate upon the payment to him by her of the sum of $7,250. The terms of sale required that $300 of the purchase price should be paid on the execution of the agreement, and that payment of the balance should be made within 30 days thereafter, provided that the examination of title had then been completed and reported.

On the ground that his wife refused to join him in making a deed to the property unless he purchased a house for her with the proceeds of sale, Cullinane on the 8th of March, 1920, repudiated his contract and notified the purchaser that conveyance of the property could not be made as he had agreed.

Elizabeth M. Reilly thereupon filed a bill in equity in the Supreme Court of the District, praying for the specific performance of the agreement of sale, and that Cullinane be required to convey the property and to indemnify the purchaser against his wife's right of dower, in the event that she did not become a party to the stipulated conveyance.

After issue joined, the case went to trial, and the facts appearing substantially as above recited, the court granted the motion to dismiss the bill of complaint without prejudice to the right of the plaintiff to apply within 10 days for a transfer of the suit to the law side of the court, for the determination of such issues as might there be properly presented. The plaintiff declined to ask for a transfer, and, electing to abide by her proceedings in equity, the decree of dismissal became effective and this appeal was taken.

The wife of the defendant is entitled to dower in the lands which were the subject of the contract (Annotated Code, Sec. 1158), and until they are freed of that right, either by proper release or transfer thereof, conveyance of a good record title cannot be made to the purchaser, as required by the terms of sale. Jones v. Gardner, 10 Johns. (N.Y.) 266; Stevens v. Hunt, 15 Barb. (N.Y.) 17.

Specific performance of the contract consequently depends on whether the wife can be or ought to be compelled to part with her dower right, either directly, by ordering her to join in the conveyance to the purchaser, or, indirectly, by ordering her husband to convey a good record title and to procure the release of the outstanding dower interest. Notwithstanding the broad powers of equity to enforce respect for the obligations of contracts in the absence of an adequate remedy at law, we are decidedly of the opinion that neither alternative can be invoked by the plaintiff, and that the wife's inchoate interest in the property cannot and should not be affected by the husband's contract, or by any proceedings against him thereon.

The wife is not a party to the agreement, or to the action brought to obtain specific performance thereof, and as she and her interests are not subject to the jurisdiction of the court in this proceeding, she cannot be forced by judicial decree to part with her dower right in order to fulfill a contractual obligation incurred by her husband without her consent. Bride v. Reeves, 36 App. D.C. 476-484.

To order the husband to make conveyance to the purchaser of a good record title, and therefore conveyance of his wife's right of dower, necessarily implies in him a power and authority over her not possessed by the court, and assumes that by subjecting Cullinane to pressure the court may accomplish through him that which could not be directly accomplished by judicial decree.

The requiring of the husband to do that which he can do, and ought to do, is correct enough; but it is not correct to put him in a position where he may use the decree of the court to coerce his wife into parting with her right of dower, a property interest designed for the support and the well-being of mother and children after the death of the family's natural protector, and consequently specially favored by the law. No mandate should be directed to the husband which may result in forcing the wife's will, or which, seeking to accomplish by indirection that which could not be directly achieved, imperils a sacred right of the wife, and menaces the peace, love, and confidence which should mark the marriage relation. 2 Story's Equity Jurisprudence, Secs. 731, 732, and 733; Outram v. Round, 4 Vin.Abr. 203; Emery v. Ware, 8 Ves. 515; Weed v. Terry, 2 Doug. (Mich.) 344-353, 354, 45 Am.Dec. 257; Barbour v. Hickey (2 App.D.C. 207, 213, 214, 215, 24 L.R.A. 763).

On the other hand, if the court were assured that the husband was not the better man, and that the wife was the controlling influence in the household, a decree such as that contended for could hardly be excused even as the last resort of equity, inasmuch as it would leave the husband at the mercy of the wife, and might tempt her to exact, as the price of her complacency, unreasonable concessions endangering the marital relation and the family welfare. 2 Story's Equity Jurisprudence, 733.

It is said that the wife's conveyance of her dower right can be secured, if Cullinane will invest the purchase price in a home for his wife, and that therefore a decree of specific performance would...