Taylor v. Bailey, 8028SC41

• Decision Date: 21 October 1980
• Docket Number: No. 8028SC41,8028SC41
• Court: North Carolina Court of Appeals
• Parties: Robert TAYLOR v. R. L. BAILEY.

Page 296

271 S.E.2d 296

49 N.C.App. 216

Robert TAYLOR v. R. L. BAILEY.

No. 8028SC41.

Court of Appeals of North Carolina.

Oct. 21, 1980.

Jeff P. Hunt, Asheville, for plaintiff-appellee.

S. Thomas Walton, Asheville, for defendant-appellant.

HARRY C. MARTIN, Judge.

Although the defendant's deed to the property in question has not been made part of the record on appeal, and the defect in the title defendant was prepared to tender is not clear, it appears from plaintiff's brief and exhibits that the only marital interest in the property held by defendant's wife is a dower interest. The statute providing for dower, N.C.G.S. 30-11 to 30-14, was repealed by Chapter 879, Section 14, 1959 Session Laws. The act repealing these sections inserted the new Chapter 29 entitled "Intestate Succession." Article 8 of that chapter provides:

§ 29-30. Election of surviving spouse to take life interest in lieu of intestate share provided.-(a) In lieu of the share provided in G.S. 29-14 (share of surviving spouse) or 29-21 (share of surviving spouse of illegitimate intestate), the surviving spouse of an intestate or the surviving spouse who dissents from the will of a testator shall be entitled to take as his or her intestate share a life estate in one third in value of all the real estate of which the deceased spouse was seised and possessed of an estate of inheritance at any time during coverture, except that real estate as to which the surviving spouse:

(1) Has waived his or her rights by joining with the other spouse in a conveyance thereof, or

(2) Has released or quitclaimed his or her interest therein in accordance with G.S. 52-10, or

(3) Was not required by law to join in conveyance thereof in order to bar the elective life estate, or

(4) Is otherwise not legally entitled to the election provided in this section.

This section preserves to a surviving spouse the benefits that were formerly available as dower and curtesy. Smith v. Smith, 265 N.C. 18, 143 S.E.2d 300 (1965); Heller v. Heller, 7 N.C.App. 120, 171 S.E.2d 335 (1969). A surviving spouse is given this election so as not to be rendered penniless and would elect this option when the estate is small or insolvent. Smith, supra. The statute limits the right of a married person to convey his or her real property free from the elective life estate provided by this section. Heller, supra. Thus, Norma Bailey's dower interest in the property would become effective only if she were to survive defendant and make an affirmative election to take this option rather than her intestate share or her share as provided by his will.

An inchoate dower interest is not an estate in land nor a vested interest, but, nevertheless, it acts as an encumbrance upon real property. Blower Company v. MacKenzie, 197 N.C. 152, 147 S.E. 829 (1929).

A vendor, who has a wife living at the time, cannot alone convey a marketable title to the land, since in such case there would be outstanding the inchoate right of dower in the wife. To enable the vendee to raise the objection of an outstanding right of dower, there need be no express stipulation in the contract, for the vendor does not comply with the express or implied condition of a contract to convey land, that he shall convey a good title free from encumbrances, where the title is encumbered by an outstanding right of dower.

Annot., 57 A.L.R. 1253, 1399-1400 (1928). This principle has been long recognized in North Carolina. Bethell v. McKinney, 164 N.C. 71, 80 S.E. 162 (1913); Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19 (1904); Fortune v. Watkins, 94 N.C. 304 (1886).

In Bethell, supra, the Court was presented with a situation similar to that in the instant case. Defendants executed a contract to sell a farm to plaintiff, stipulating "the deed to be executed to said Bethell is to contain the usual covenants of warranty and the property relieved of any and all encumbrances now subsisting." Id., 164 N.C. at 72, 80 S.E. at 162. In an action by plaintiff for specific performance, one defendant, Ivie, alleged that he was willing to execute a fee simple warranty deed but plaintiff refused to accept the deed because Ivie's wife was unwilling to join in the conveyance. As in the present case, plaintiff knew at the time of the contract that Ivie was married, that his wife was entitled to contingent dower, and that the contract did not stipulate for the wife's joinder in the deed. The trial court ordered defendants to execute a "good and sufficient deed in fee simple to the lands described in the contract, with the usual covenants, and relieved of all encumbrances thereon," upon the plaintiff's paying the contract price less an abatement for "the present value of the inchoate right of dower of the wife ... as damages or equitable compensation for failure of title to that extent, unless defendant Ivie shall in the meantime procure said deed to be executed by his wife ...." Id., 164 N.C. at 73, 80 S.E. at 162-63. The court further ordered Ivie to make reasonable efforts to procure his wife to join him in the execution of the deed. If he were unable to do so, the case was to be submitted to a jury for determination of the present value of the inchoate dower right and the value of rents and profits of the land from the time the sale was to have been completed. The Supreme Court agreed with this portion of the decision, recognizing that although the wife could not be compelled to join in the conveyance, the vendee could enforce the contract and take such title as the vendor could give, with an abatement of the contract price for the right of dower outstanding, the value of which could be calculated. See also Colwell v. O'Brien, 196 N.C. 508, 146 S.E. 142 (1929).

In Flowe v. Hartwick, 167 N.C. 448, 451-52, 83 S.E. 841, 843 (1914), the Court stated:

Our authorities also sustain the position, very generally recognized, that when the vendor's title proves to be defective in some particular or his estate is different from that which he agreed to convey, unless the defects are of a kind and extent to change the nature of the entire agreement and affect its validity, the vendee may, at his election, compel a conveyance of such title or interests as the vendor may have and allow the vendee a pecuniary compensation or abatement of the price proportioned to the amount and value of the defect in title or deficiency in the subject-matter ....

See also Goldstein v. Trust Co., 241 N.C. 583, 86 S.E.2d 84 (1955).

The principle behind allowing an abatement of the purchase price in addition to specific performance is that "it is unjust to allow the vendor to take advantage of his own wrong, default, or misdescription." Annot., 46 A.L.R. 748, 748 (1927). "The obligations of a contract, except in certain specified and very restricted instances, are imperative, and, when they are wrongfully broken, neither inability to perform nor ignorance of conditions may ordinarily avail as protection against an award of damages." Warren v. Dail, 170 N.C. 406, 411, 87 S.E. 126, 128 (1915).

This is precisely the situation in the present case. Plaintiff brought his suit for specific performance and obtained a judgment of record ordering defendant to perform the contract. Thereafter, he brought the present action for damages. Six months after commencing this action, plaintiff cited the defendant for contempt for failing to comply with the judgment of specific performance. Defendant tendered plaintiff a deed, without his wife's joinder, and upon hearing, the court found defendant could not compel his wife to sign the deed, and dismissed the contempt charge. Plaintiff still relied upon the specific performance judgment even after this case was begun. He has not abandoned that lawsuit, nor cancelled the judgment he recovered. Where plaintiff seeks both specific performance and damages, as plaintiff here does, he is limited in damages to the abatement in the purchase price for the present value of the wife's dower interest. Flowe v. Hartwick, supra. The situation is analogous to a buyer suing for specific performance of land encumbered by a lien or deed of trust; he is entitled to an abatement of the purchase price in the amount of the encumbrance. See Nugent v. Beckham 43 N.C.App. 703, 260 S.E.2d 172 (1979); Passmore v. Woodard, 37 N.C.App. 535, 246 S.E.2d 795 (1978); 71 Am.Jur.2d Specific Performance §§ 134-36 (1973).

Thus it seems clear that plaintiff in the present case remains entitled to specific performance on the contract to convey the property, with an abatement in the purchase price for the value of defendant's wife's dower interest and for rents and profits for the period he was denied possession. The trial court's 1976 order for specific performance was granted in that court's sound discretion, with a view toward serving the ends of justice. See Knott v. Cutler, 224 N.C. 427, 31 S.E.2d 359 (1944). The sole function of specific performance "is to compel a party to do precisely what he ought to have done without being coerced by the court." McLean v. Keith, 236 N.C. 59, 71, 72 S.E.2d 44, 53 (1952). Defendant contracted to convey a "good and sufficient deed, in fee simple ... free from all liens and encumbrances." How he intended to do so was not the concern of plaintiff, nor of the court. "Equity can only compel the performance of a contract in the precise terms agreed on. It cannot make a new or different contract for the parties simply because the one made by the parties proves ineffectual." Id. at 71, 72 S.E.2d at 53.

In affirming the decree for specific performance as the appropriate remedy, Judge Morris, now Chief Judge, noted that if defendant "cannot, or does not (execute and deliver a good and sufficient deed), the question of damages is the subject of another lawsuit." Taylor v. Bailey, 34 N.C.App. 290, 295, 237 S.E.2d 918, 921 (1977). Clearly the issue of election of remedies, as propounded by defendant, is no problem, because that issue generally arises in ca...