The deed of 1863, executed by John Felten and wife to the defendant Sehwamb, although it did not convey the land intended, must be treated in equity as an executory contract by John Felten to convey such land. Eaton v. Eaton, 15 Wis., 259; Hanson v. Michelson, 19 Wis., 498; Petesch v. Hambach, 48 Wis., 443. While the land intended to be conveyed- remained the homestead of Felten and wife, the defendant could not have enforced specific performance of such executory contract, because, on the authority of the case last cited, the wife could not be compelled to sign the conveyance, and without her signature.it would be void. But it was undoubtedly a valid contract, for the breach of which Felten would probably have been liable to respond in damages to Sehwamb, which, if not recoverable in an action at law, might perhaps be awarded by way of compensation by a court of equity. At any rate, no good reason is perceived why Sehwamb might not have maintained an action for the specific performance of such contract against John Felten, whenever it was' in the power of Felten to convey the land bargained for.
If A. covenants to convey land to B. to which he has no title, and afterwards acquires title thereto, B., if otherwise entitled to do so, may maintain an action for specific performance. If A. does not acquire title, and hence cannot perform his covenant, B. may, in some form of • action, recover his damages of A. for his breach of the covenant. This seems to *378be such a case. Immediately after the execution of the defective deed, the land claimed ceased to he the homestead of Eelten and wife by reason of their removal to, and continued residence in, Minnesota. Hence, at any time thereafter, Schwamb might have maintained an action against Eelten, not to reform the defective deed (for, on the authority of Petesch v. Hambach, supra, if that case is to be followed, that instrument could not be reformed as against the wife), but to compel Felten specifically to perform his executory contract to convey,the land claimed, so far as he could perform it. Of course he could not have conveyed his wife’s inchoate right of dower; but that.would have been no impediment to specific performance by Felten if Schwanib was willing to take such a conveyance as he could give. Wright v. Young, 6 Wis., 127, and cases cited.
The learned counsel for the plaintiff, for the purpose of defeating a specific performance in this case, invoke the rule that a contract, to be enforced, must be fair, just and certain, and founded on adequate consideration. Smith v. Wood, 12 Wis., 382; Williams v. Williams, 50 Wis., 311. It seems to us that this contract fulfils those requirements. Surely there is nothing unfair or unjust in a stipulation that the purchaser shall not be required to pay for the land until the grantor procures the release of an incumbrance which nearly or quite equals the value of the land. The reply puts the value of the land at $1,300; the contract price therefor was $900. This is not such an inadequacy of consideration as will defeat the right to specific performance of the contract. True, neither Eelten nor his heirs have received any part of this consideration; but they are responsible for that result, because they have neglected to procure a release of the incum-brance. We speak of the mortgage to the railroad company as an incumbrance, and we think, under the averments in the pleadings, it must be regarded as such. It is alleged in the reply that the mortgage was delivered to a person who claimed *379to be tlie agent of the railroad company, who caused it to be recorded. Uo claim is made that it was intended as a limited delivery, or that the company repudiated the acceptance of full delivery by such person, or that such person was not in fact the agent of the company authorized to accept such delivery in its behalf. The allegation that the mortgage was never delivered to the company, is a conclusion of law not sustained by any fact stated in the reply.
The circuit court rendered an unconditional judgment, reforming the defective conveyance of 1863. This was erroneous. As already observed, the deed could not be reformed as against Mrs. Felten, the widow of John. The judgment should have been that the heirs of John Eelten convey to Schwamb all the title and interest in the land claimed, which they inherited from their ancestor; or the court, by its judgment, should have passed such title and interest directly to Schwamb without such conveyance. R. S., 885, sec. 3501. But it is claimed by the learned counsel for the defendant, that Mrs. Felten has no right of dower in the land, because, at the date of her husband’s death, she was residing out of this state, and hence that she cannot be injured by the informality in the judgment. They cite Bennett v. Harms, 51 Wis., 251, as authority for their position. A reference to that case, and to the statutes cited and construed in the opinion of Mr. Justice Cassodat, will show that if John Felten “ died seized ” of the land, she has a right of dower in it, notwithstanding her non-residence; otherwise not. R. S. 1858, ch. 89, see. 1; R. S., 626, sec. 2160. There may be some difficulty in determining whether John Felten “died seized” of the land within the meaning of the statute — the legal title being in him, and the possession and equitable right being in Schwamb. The question was not argued, and we prefer to leave it undetermined in this case by directing judgment as above indicated, binding the heirs of Felten only.
We think it equitable to direct another modification of the *380judgment. Sohwamb must be required to execute to the heirs of Felten a mortgage on the land claimed, conditioned for the payment of the $900 whenever they, or any of them, shall procure a release of incumbrances as stipulated in the contract.
By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to that court to give judgment in accordance with this opinion.