Banbury v. Arnold

Garoutte, J. This action is brought by respondent, who was the vendor in a contract for the sale of certain real estate, to enforce specific performance of the contract on the part of the appellant, who was the vendee.

There is an appeal by defendant from the judgment. A copy of the contract is attached to the complaint and made part of it. The contract shows that the plaintiff was a married woman and the wife of T. Banbury at the time she entered into it. There is no certificate of acknowledgment attached thereto, and no express allegation in the complaint that it -was acknowledged.

For grounds of reversal appellant insists that the complaint does not state facts sufficient to constitute a cause of action. The fact that appellant’s demurrer was overruled by consent does not preclude him from attacking the judgment in this court upon the ground that it rests upon a complaint inherently defective, and it is upon the sufficiency of that complaint that the merits of this appeal must be determined. Section 1093 of the Civil Code provides: “No estate in the real property of a married woman passes by any grant purporting to be executed or acknowledged by her, unless the grant or instrument is acknowledged by her in the manner prescribed by sections 1186 and 1191.” Section 1187 of the Civil Code provides that a conveyance by a married woman has no validity until acknowledged according to the requirements of section 1186. In the case of Jackson v. Torrence, 83 Cal. 521, it was held, under these provisions of the code, that specific performance of an unacknowledged executory contract of a married -woman to convey her [608]separate real property could not be compelled. In the case at bar, assuming that this contract was not acknowledged, we have a married woman attempting to enforce against the vendee her unacknowledged executory contract for the sale of real estate. As we have seen, the vendee could not have enforced the contract against her, and there is no principle of equity that gives or should give her rights under the contract not accorded to the defendant vendee. This principle is clearly declared in Cooper v. Pena, 21 Cal. 412; and in Vassault v. Edwards, 43 Cal. 466, the court said: “There is no exception to the rule—at least none now occurs to us —that the contract, though signed by both parties, will not be specifically executed at the instance of one party, unless performance on his part can also be compelled. The proposition that specific performance of the contract would not be decreed when the party asking its enforcement could not be compelled to perform it was decisive of the case [referring to Cooper v. Pena, 21 Cal. 412], and upon it the case was in fact decided; and, in our opinion, the decision is sustained by the overwhelming weight of the authorities.” Appellant concedes the rule, but insists that this cause is an exception thereto, and similar in principle to those cases which hold that a minor may enforce his contract after arriving at majority, or that a beneficiary may enforce a contract against his trustee although the trustee had no enforceable rights against him. The principles there involved are not analogous. Such contracts, for just and proper reasons, are made voidable at the option of the infant or beneficiary; but in this state a married woman in dealing with her separate property stands upon no such plane, and is hampered in her transactions relating to her property in no such manner. The contract in this case is not one, and certainly should not be construed as one, voidable at plaintiff’s option. The consideration actuating the vendee in entering into the contract was her agreement to convey the land to him. Her acknowledgment of the contract was an essential part of the execution of it (Joseph v. Dougherty, 60 Cal. 360), and