IN BANC.
DISSENTING OPINION.
LAMM, J.— I agree to paragraphs one, two and five of the opinion by my brother Woodson, but not with his disposition of the question of dower in other paragraphs, nor with the reasoning upon which it is *717put. Some authorities sustain the conclusion announced; but, it is earnestly submitted, the main current of modern authority runs strongly and broadly the other way.
The .question is: May a vendee have specific performance of a contract for the conveyance of real estate, with abatement of price pro tanto for an outstanding inchoate dower right?
The proposition is of sharp concern to the business interests' of the State, coming home to the fireside of the citizen and seeks a consideration commensurate, in fullness of depth and breadth, with its own gravity. The case at bar has the vantage ground of being a “seed-case,” hence this court may be persuaded (but is unbound) by precedent. Being free to take the view deemed soundest, it cannot be amiss to ponder well the course we set out on. A choice at the forks of the road is one thing — to. tread back on a journey is quite another.
It is true the conclusion reached runs contrary to the directions sent down in Kilpatrick v. Wiley, 197 Mo. l. c. 172-3. In that case specific performance was decreed in favor of the purchasers, Wiley and Dungan (defendants), and, in reversing and remanding that case, the chancellor, nisi, was admonished as follows: “If plaintiffs be married and their wives, or either of them, refuse to join in a conveyance, then testimony should be heard on their ages to ascertain by tables the present worth of their dower interests and, in that event, the purchase price should be diminished thereby, provided Wiley and Dungan are willing to accept specific performance in that form with compensation for outstanding dower.” However, the doctrine was not discussed in the briefs in that case, nor by the writer, but the rule was laid down bare and bald as one announcing recognized and well-grounded equity under a prayer for general relief, on the theory that in matter of equitable cognizance the chancellor should not halt *718midway, but go on and administer rounded-out relief, surmounting all mere adventitious obstacles in his road. •What was said, therefore, does not rise to the plane of exposition and doctrine and so, as aptly said by my brother, the point may be considered res mtegra in this jurisdiction.
It is not my understanding that it is an altogether open question, nisi; for in some circuit courts in Missouri, within my experience and observation at the bar, it has been the-rule to enforce contracts for-the sale and conveyance of real estate in favor of the vendee with compensation to him for outstanding dower rights, if he elect to take relief in that form, and if that rule is to be condemned it should be after we have gravely weighed the matter pro and con.
It has been said by some text-writers and held in some jurisdictions, that the question whether the vendee •knew the vendor was married at the time he contracted is a vital one in settling relief. To my mind it is not clear that it should be taken as vital, and, in a line of well-considered cases, that element is ignored. But in determining the rights of a vendee under such a contract, there ought to be no difference of opinion on the fact, so long as the fact is at hand to be got at. Attending to that fact, in my brother’s statement of the case it is set down fairly that the seller testified he told the buyer at the time of signing the contract that he signed it ‘ ‘ subject to the approval of his wife. ’ ’ By inference-, if the evidence be believed, this brought notice home to the vendee that the vendor was “under coverture” — we use the phrase advisedly as apposite to the present legal status of the husband. It is also set down in the statement fairly that the vendee in rebuttal put in evidence tending to contradict the vendor’s in that behalf. Now, with the fact (at best) so put in dubio, by inadvertence it is assumed that the vendee knew the vendor was married at the contract time. For instance, in paragraph three is this: ‘ ‘ The evidence in this case discloses the *719fact that at the time of the execution of the contract the defendant was married, ancl that the plamtiff had knowledge of that fact.” Further along is this: “In addition to this plaintiff knew Spelbrink was married and that his wife had dower rights in the land and notwithstanding that knowledge it accepted the contract of sale signed by him alone, she not joining, with an agreement that he would convey the property by general warranty deed clear of all incumbrances,” etc. In this condition of things it becomes pertinent to say that if the vendee’s knowledge of the vendor’s coverture be material, the fact should be fixed by record. Turning to that record, it appears that the palpable weight of the testimony is against the fact assumed. The chancellor would have been quite just in finding below that the vendee had no knowledge of the vendor’s marriage at the time the contract was executed. It is true there is evidence that some days afterwards, Spelbrink communicated the information to the plaintiff by telephone of his wife’s dissatisfaction. It seems he had a post-contract conversation with his spouse and learned of her dissatisfaction. It is further true that plaintiff, by its clerk, then sent the contract to Spelbrink’s house to get the wife’s signature. We infer on that mission he met Spelbrink alone. It seems the clerk was notified that Spelbrink considered there was no necessity to have the signature of his wife — that, “his word was good.” It is within the record to say that the only evidence indicating the vendee’s knowledge of the vendor’s marriage at the time of executing' the contract is the unsupported testimony of the vendor himself and that crept into the case sidewise. The matter arose in this way: He puts himself at the office of plaintiff in the presence of Mr. Gauss (a stenographer), of Mr. Hemmelmann (the plaintiff’s vice-president), and a Mr. Aiple (who is dead), and while there the contract is prepared by Mr. Gauss and is about to be signed. At that moment this happens, according *720to the’record — Spelbrink being on the stand: “Q. Now, at that conversation you say Mr. Hemmelmann and the typewriter were within from five to eight feet? A. Yes, sir. Q. And what did you say? A. I told him providing [meaning: I told him I would sign the contract providing] my wife was satisfied with the signing of that contract. Q. Was that all you said? A. That is about all.” Such was his evidence in chief. He then signed the contract. Opposed to plaintiff’s testimony, Mr. Hemmelmann testified he heard the conversation and that Spelbrink made no mention of his wife at all. Mr. Gauss testified the same way, and Mr. Hemmelmann further testified he did not know defendant was married and only knew him in a business way at the time the contract was executed.
With the oral evidence in this fix, the improbability of plaintiff’s making the remark relating to the wife at the time of signing the- contract, shown aliunde, should be put in the scale. Por instance: In the first place, plaintiff corporation was a business concern. Its officers were seasoned and live business men and if such unusual remark had been seriously made, as defendant contends was made, it is highly unlikely they would have closed so important a transaction for their foreign clients with so singular and challenging a condition subsequent sought to be tacked on by parol, without either requiring defendant to settle the question whether his wife would come on or allow him to go on, or requiring her signature; then and there. Here, if defendant is to be credited, were two minds meeting in a contract, and yet a third mind is projected by suggestion into the affair and then calmly (but not wisely) ignored by the suggestor, though by that lapse of prudence and omission of connubial fealty he laid himself wide open to be mulcted in damages if his wife held out at the end. In the second place, if defendant felt (as he would have us believe now) that it was his duty to consult his wife, or felt a call to advertise to plaintiff that his wife had *721to be reckoned with as having á head of her own, and that he was a yielding and mellow yoke-fellow, his marital loyalty would naturally have found vent in consulting her in advance. He would not have signed the contract without ascertaining her state of mind, like a good husband should do. In the third place, the record shows that plaintiff and defendant had prolonged real estate negotiations finally consummated in the contract in suit. Though he and plaintiff had signed other contracts anent the sale, yet at no other place and at no ether time during this business dealing did he think it necessary to take plaintiff into his confidence and proclaim that he had a wife or that he had to consult her. The chancellor, then, would have been right in finding, and presumably did find as a fact, that at the precise contract time the vendee had no knowledge the vendor was married.
In view of the foregoing, while, as said, I do not •deem the vendee’s knowledge of the vendor’s coverture a turning or vital matter, yet the case ought to proceed on the theory there was no such knowledge at the contract’s birth.
With this clearing away of underbrush, we come into the open and reach the main question.
I. The consideration of that question may be begun by reminding ourselves of the general equitable rules pertaining to specific performance. These rules assort themselves into questions of mere discretion and questions of right or power. It may be said that specific performance is somewhat of grace, i. e., the chancellor is entitled to exercise a discretion, he must seek equity and -do it — not inequity — and, hence, specific performance will not go as of course and as a mere hard and fast matter of absolute right. However, as pointed out in Kirkpatrick v. Pease, 202 Mo. l. c. 493-4: *‘ Discretion does not mean caprice. A discretion meas-*722Tired by a capriciously elastic, yardstick would present a false measure of equitable right. This discretion is spoken of in the books as ‘a sound discretion’ — sound, meaning judicial. ” It is a discretion governed by solid and settled rules and principles. It is one subject to review, and if the contract (as in this case) be fair, just and equitable the chancellor will,use his extraordinary authority and decree specific performance. [Ivory v. Murphy, 36 Mo. l. c. 542.] This is so, because, as well put by Virgin, J., in Woodbury v. Gardner, 77 Me. l. c. 69: “When a party to an agreement, fair and just in its terms, understandingly entered into and concluded, is injured, without default on his own part, by the non-fulfillment of the other party, the most direct and satisfactory remedy which he instinctively seeks is specific performance. This practical result he cannot obtain by the common law, for that measures all losses by money; but equity comes in to supply this more, complete justice, and has laid down certain rules of relief by which, when its circumstances bring it within them, every contract susceptible of substantial enjoyment may be enforced.”
In short, it may be said that those fine rules of personal honor obtaining between man and man, requiring one man to keep his word with another, but accord with Justinian’s golden idea of equity, viz., that every man should render to another his due.
Speaking of specific performance, Story says [2 Story Eq. Juris. (13 Ed.), sec. 779]: “The general rule (for it is not universal), in such cases, is, that the purchaser, if he chooses, is entitled to have the contract specifically performed as far as the vendor can perform it, and to have an abatement out of the purchase money or compensation for any deficiency in the title, quantity, quality, description, or other matters touching the estate.”
The general rule so formulated has been adopted and uniformly enforced in this State. Thus.: In Luck*723ett v. Williamson, 31 Mo. l. c. 58, Scott, J., said: “Where the vendor has not substantially the whole interest he has contracted to sell he cannot enforce the contract against the purchaser [see in this connection, Greffet v. Willman, 114 Mo. 106] and yet the purchaser can insist on having all the vendor can convey with compensation for the. difference. ” [Hart v. Handlin, 43 Mo. l. e. 175; McGhee v. Bell, 170 Mo. l. c. 133, et seq., and cases cited.]
The case may proceed, then, with these two fundamental propositions assumed as solid, viz.:
(a) A purchaser of real estate under a contract such as here, that is, an honest one, a fair one, free from covin, overreaching, or misuse of trust relation — supported by a valid consideration, definite in term and not obnoxious to the Statute of Frauds — is entitled as of right to performance. The contracting parties write their own law in their contract. Courts sit to enforce the law. Hence, they sit to enforce contracts — not abrogate them. [Evans v. Evans, 196 Mo. l. c. 23.]
(b) Being entitled to performance and defendant refusing to perform, such purchaser is entitled under clear equity to elect to accept that which was in the power of the vendor to give and further entitled to compensation for so much as the vendor had not in his power to give (in this case the inchoate dower right of his wife) unless there is something, singular about the inchoate right of dower taking it out of the general rule and putting up the bars to full equitable relief, to-wit, performance in kind so far as possible with compensation for the part not performed.
In the evolution of the case the question then has come to be: Is there such peculiarity about the inchoate right of dower as strips the chancellor of power, or makes it inequitable to coerce performance on the husband’s part by decreeing title out of him (if he refuse to convey) with compensation by proportionate abatement of the contract price?
*724As said, it would seem a negative answer is due that question. And this because of the inherent good sense of the thing as well as the weight derivable from the sound exposition of text-writers and the reasoning of adjudicated cases.
It may at the outset be well to consider some of the cases leaned on as supporting a contrary ; lew. In ■some of them, notably from the Supreme Court of New Jersey, a distinction is made between a case where an element of fraud enters into the wife’s refusal to join in the deed, and one in which fraud is absent. In case of fraud it is held by that court, full relief may go. [Reilly v. Smith, 25 N. J. Eq. l. c. 159, and cases cited; Flaharty v. Blake, 10 Atl. 158.] May it not be justly said of this theory that while fraud is a matter of ancient and modern equity cognizance, yet courts of law have jurisdiction in cases of fraud as well as courts of equity? That one need not as a rule go into equity to cure fraud? That specific performance, a distinct and independent ground of equitable cognizance, ought to require no aid from doctrines relating to fraud? That it stands, to use a homely expression, on its own legs and may go because of the contract itself — absent fraud or present fraud in the vendor? The equity of specific performance in favor of a vendee is not administered as a punishment for fraud in the vendor, but because of what is due the vendee, and is it not inconceivable that a vendor who refuses to perform through stubbornness-through loose ideas of the binding sacredness of a contract or (peradventure) because of the prick and itch of gain in a market rise — is any less amenable to the equitable rule because he does not also inject a darker element of fraud into his refusal?
In 1874 the Court of Appeals of New York decided Sternberger v. McGovern, 56 N. Y. 12. On that learned bench at that time were seven judges. Grover, J., wrote the opinion, and what he said has been quoted in support of the notion that the purchase price should *725not be abated by tbe value of an outstanding dower right. But it is a misapprehension to put the plenary, authority of the Court of Appeals of New York behind what was said by Judge Grover; for only two of-the judges concurred in his remarks. One judge,' Raparlo, -was absent. Two judges, Church and An- • drews, did not vote and another, Allen, concurred in the result upon the peculiar circumstances of the ease — ' one of an exchange of properties. Allen, J., concurred in the result in this way: “Allen, J., concurs in the result upon the peculiar circumstances of the case, without passing upon the question whether specific performance with money compensation for inchoate right of dower may not be ordered in cases of exchange as well as upon a contract for the purchase of real property.” Hence what was said by the deciding judge in relation to the use of life tables in cases of this character and what was said by him in relation to such abatement of price as might be got at by the use of such tables, must be taken with at least two grains of allowance, viz.: the state of the law at that time on the use of life tables, and the fact that a majority of that learned bench did not agree with him.
In a later New York case in which all seven judges concurred, Bostwick v. Beach, 103 N. Y. 414, the dower right of a widow was involved in a case of specific performance and that court found no difficulty with the matter, disposing of it in this way: “As to the dower right of the widow, a more complicated question is presented. If the purchaser should elect to carry out his purchase and take title to the land, subject to that dower right, he would clearly be entitled to do- so, and in that event would be entitled to an abatement from the contract price, equal to the gross cash value of the' right of dower. If a seller of land is not able to comply fully with the contract, either in respect of the quantity of the land or the extent of the estate, the court will, at the election of the buyer, decree specific. *726performance of the contract, so far as the same can be performed, awarding compensation to the purchaser by way of abatement from the purchase price, for any deficiency in title, quantity of land, or other matters touching the estate, the value of which are capable of being ascertained and thus compensated without doing injustice to either party. Upon this principle specific performance has been decreed where there was an outstanding dower right which the vendor could not control, and the purchaser elected to take, subject to that incumbrance. The gross value of the dower right has been adjudged in such cases to be the measure of compensation to be allowed to the purchaser by way of abatement from the price.” Bostwick v. Beach was decided on the strength of the doctrine of Massachusetts courts, presently to be referred to.
In view of the foregoing later utterance of the , highest court in New York we ought not without hesitation and caution to either base our own determination of the matter upon, or fortify it by, the dictum of Grover, J., in (the Sternberger case.
It may be admitted that the Supreme Courts of Ohio, North Carolina, Illinois and Pennslyvania sustain the doctrine announced by my brother. The Pennsylvania oases (Clark v. Seirer, 7 Watts l. c. 110-112, and Riesz’s Appeal, 73 Pa. St. l. c. 490), quoted from in extenso by him, bear the hall-mark of oracles of the law — Gibson and Sharswood. What is said by Chief Justice Gibson in Clark v. Seirer, supra, is written by a trenchant and characteristic pen, and what is said by Sharswood bears the ear-marks of his elegant and ripe learning, but it is modestly submitted with confidence ■that the gist of what was said by Gibson, O. J., is in the main leveled at using the power of a court of equity to coerce a conveyance from the wife by using contempt process against the husband whereby her affections may be played upon and her will broken. No one at this late day in the light of modem equity jurispru*727dence would assert that a court of equity would decree specific performance by ordering the husband to produce a deed with his wife’s signature by a certain time or be clapped into jail for a refusal. The Supreme Court of Wisconsin refused in terms to follow Clark v. Seirer, supra. See Wright v. Young, 6 Wis. l. c. 130, infra.
The reasons given by Shabswood in Riesz’s Appeal, supra, have been included in a note to the text of Pomeroy’s Spec. Performance of Contracts (2 Ed.), top pages 526-7. Referring to the Pennsylvania rule, which is also the rule in some other states as hereinbefore pointed out, Pomeroy sharply and successfully challenged the reasoning of Shabswood, J., and it will not be space misapplied to quote and adopt with ap-proval what he has to say, viz.: ,
“It seems to be settled in some of the States as a* general rule, whether the vendee knew of the wife’s dower interest or not, that when a contract is made with the husband, and the wife refuses to release her dower, the vendee cannot have an abatement from the price if he obtains a specific performance; he must either abandon the contract, or obtain a conveyance of the husband’s estate, and sue him at law for a breach of the contract, or else content himself with the legal remedy alone. The reasoning quoted in the note, by which this rule is supported, is certainly very unsatisfactory, and the argument by which a judge sitting in equity justifies a party in the breach of his contract, and throws the shield of his decision over the defaulting party alone, is in striking contrast with the utterances of those equity, judges who have built up the system and developed its doctrines from the eternal principles of right and justice. In fact, all the grounds given by the learned judge [Shabswood] against awarding compensation are utterly untenable. The argument that the court cannot make a new contract for the parties, would apply with exactly the same force *728to- every case in which an abatement from the price is decreed; and, notwithstanding his assertion, it is plain, upon the slightest examination, that the case is identical in principle and in its particulars with all those instances of partial failure or defect of title in which compensation is always given.to the vendee. The particular difficulty in the way of ascertaining compensation al-. leged by the judge, is shown to be no difficulty at all by two distinct considerations. First, if-the husband himself had procured his wife to refuse, for the purpose of defeating the contract, then, as will be,seen in the following paragraphs, a specific performance, with compensation, will be decreed; but on the reasoning of the court, this could not be done, since the difficulty of fixing. upon the amount of the abatement is just as great in the one case as in the other — the contingency existing in -the latter instance as well as in the former. But, secondly — and this answer is overwhelmingly conclusive — it is conceded by the court that the vendee can sue at law and recover damages against the vendor for the breach of the contract. Now, in the action at law, the damages must be assessed upon exactly the same basis as that upon which the abatement of the price would be ascertained in equity — if not, the assessment would be mere conjecture. If the damages can be assessed at law, notwithstanding the contingency, then, upon the same principle, and with the same ease, the compensation can be ascertained in equity. A party is dismissed from a court of equity because the relief which he asks is said to be impossible; he goes to a court of law and obtains the very same relief, on the very same facts, and in the very same manner in which he asked to have it granted in equity. In truth, a court of equity, in awarding compensation, does not necessarily require that the ■ basis upon which the amount is ascertained should give a result with absolute accuracy; it is enough if the result can be fixed with reasonable certainty. Now, by the aid of the life *729tables, disclosing the probable life of the wife, the present value of her dower can be ascertained with perfect ease upon the supposition that she will survive her husband; and even if this should possibly be a little too large, the husband, who has entered into a contract which he cannot fulfill, is in no position to demand favor from the court, especially as the money will only be withheld for a time by the vendee, and will be paid at the expiration of the dower right by the death of the wife, whether she die before or after her husband.”
Our author gives the approval of his strong and discriminating pen to the right of specific performance on behalf of the vendee with compensation for an outstanding inchoate dower right, but says that, on principle, the relief ought to be limited to those cases in which the vendee did not know the vendor was married at the contract time. [Pom. on Spc. Per. sec. 461]. Good reason abounds against this modification of the rule, but the question may be reserved, since the facts of this case bring it within the general doctrine asserted by the author.
"We come in the next 'paragraph to consider the state of the law on the main'question as deduced from as painstaking an investigation of the decisions in our sister states and the doctrine of text writers, as the writer has at his disposal or ability to make.
II. Waterman lays down the rule with Pomeroy’s qualification (Waterman on Specific Performance, sec. 511). He says: “As a rule, where a person contracts for the purchase of real estate, supposing that the vendor can give him a clear title, and the wife of the vendor refuses to join her husband in the conveyance, the vendee may, at his option, decline to- take a deed executed by the husband alone, and bring an action against him for breach of covenant; or the vendee may accept the deed as part performance and retain so much of the purchase money as shall be proportionate *730to the outstanding contingent- interest of the wife. If the purchaser, when he enters into a contract, knows that the vendor has a wife, he of course takes the chances of the wife’s refusal to release her right of dower, and, in the latter event, if he insists on performance, he cannot justly claim, and will not be entitled to, anything more than a conveyance of the husband’s estate.” ;
The learned authors of the Am. and Eng. Ency. Law (2 Ed.), vol. 26, p. 83, say:
“Where a party has entered into a contract which he is only partially able to perform, he will not, as a rule, be permitted to plead his own incapacity in bar of all equitable relief, but performance of such portion as he is able to perform may be decreed, with pecuniary compensation for the residue, or an abatement of the purchase price as to that portion of the property which cannot be acquired. So where a husband has entered into a contract of sale, and his wife refuses to join in the deed for the extinguishment of her dower right, it has been held that performance by the husband may be decreed with compensation or abatement for the wife’s dower interest, or indemnity may be required against loss by the wife’s claim for dower.”
The rule in Massachusetts is to the effect that specific performance will be decreed with compensation ■ for an outstanding inchoate right of dower. [Park v. Johnson, 86 Mass. (4 Allen) 259; Woodbury v. Luddy, 96 Mass. (14 Allen) 1.] As already pointed out, these two cases were cited with approval by the Court of Appeals of New York in Bostwick v. Beach, supra, and hence met the concurrence of the New York court. In the Park case, Dewey, J., said: “As' to the objection that the court will not decree a specific, performance of the agreement so far as relates to the release of dower by the wife of the defendant, if the prayer of the bill is that the wife shall execute such release-, it would of course be denied, she not being *731a party to this contract, nor under any obligation to execute such release. [Squire v. Harder, 1 Paige Ch. 494.] But this will not prevent the court from compelling the defendant to execute the contract on his part, so far as it is personal to him, and also charging him in damages for the inability to execute his agreement in that respect. The plaintiff will therefore be entitled to a decree in his favor, requiring the defendant to execute the contract on his part, the plaintiff also performing the stipulations on his part, including the oral stipulation; and that upon failure to procure the release of dower by the wife of the defendant, proper damages be assessed therefor against him, and that the case be referred to a master to report as to the same.”
In the Woodbury case, involving outstanding dower, Hoar, J., said: ‘ The general rule undoubtedly is, that when a person can only partially perform a contract into which he has entered, he must respond in damages to the extent of the difference in value between that which the other party receives and that to which the contract entitled him. And this is found by taking the market value of what is delivered, and deducting it from the market value of the whole subject of the contract. [Wetherbee v. Bennett, 2 Allen 428.] But this rule is not universal; and, in the case of an incumbrance on an estate conveyed with covenants of warranty,' the more usual measure of damages for the breach of the covenant against incumbrances has been the market value of the incumbrance, where this was capable of an exact estimate. [Estabrook v. Hapgood, 10 Mass. 315.] But under the peculiar relation of the parties, we can have no doubt that the latter rule is the just one. The plaintiff seeks the aid of a court of equity to compel the specific performance of the defendant’s contract to convey land. The defendant is unable to make a perfect title; and the court, at the ■plaintiff’s election, will compel the conveyance of so *732much as the defendant can convey, and will award compensation in the nature of damages for the deficiency.....The plaintiff in effect elects to take satisfaction partly in land and partly in money; and if he is allowed to do this'he should only in equity he allowed to receive the fair money value of the part of the estate which is not conveyed to him. In the adjudged cases, though this is sometimes called damages, it is more usually spoken of as an equitable- compensation for the value of that which the defendant does not convey.”
In Iowa the question came before the Supreme Court of that State in Troutman v. Gowing, 16 Ia. 415. The court, nisi, in granting specific performance decreed one-third of the purchase money to be retained by the vendee as representing the value of the dower right until the wife should join in the deed. This was held erroneous and the cause was reversed with directions to the lower court to ascertain the value of the wife’s interest either by a master or otherwise, so that in the light of testimony the court below should make the proper order to protect the rights of the respective litigants.
The question came- before that court again in Leach v. Forney, 21 Ia. 271 — Judge John F. Dillon then sitting. It was there held that: “When the wife of the vendor refuses to- join with her husband in the execution of sufficient deeds to enable him to perform on his part a contract for the conveyance of real estate, the vendee has the option of accepting performance by the husband to the extent of his liability, and the retention of so much of the purchase money as shall be proportionate to the utmost possible outstanding or contingent interest not conveyed, without interest; or to- refuse such partial title and have his damages for a breach of the covenant.”
In Zebley v. Sears, 38 Ia. l. c. 509, it is said: “It is also settled that, under a contract to convey real estate *733upon final payment of the purchase money, if the wife of the vendor refuses to join with her hnshand in the execution of a sufficient coveyance to enable him to perform his contract, the vendee may, at his option, refuse to take a deed executed by the vendor alone, and bring his action for a breach of the covenant, or he may accept such deed as part performance, and retain so much of the purchase money as shall be proportionate to the outstanding contingent interest of the wife.”
In Townsend v. Blanchard, 117 Ia. 36, that court reviewed its former decisions and in commenting upon a contention made, said: “If the result of such holding was the making of a new contract for the parties, we would hesitate long before adopting it. But, as will be seen from a reading of the foregoing cases, this is not so. The contract, as made, is enforced in so far as it is possible; and courts do not permit defendants to take advantage of their own wrong. Purchasers are entitled to enforce their contracts in so far as possible, and at the same time have damages for non-performance of the entire contract.” The doctrine was again affirmed in Bradford v. Smith, 123 Ia. 41, and in Thompson v. Colby, 127 Ia. 234.
The question came before the Supreme Court of Wisconsin in Wright v. Young, 6 Wis. 127, and in disposing of it Cole, J., considered many cases, English, and American, including Clark v. Seirer, supra (refusing to follow its lead, p. 130), saying: “We therefore conclude that in the present case, the vendee can enforce a performance of the contract, and take such a title as the vendor can give, and have an abatement of the purchase money for the right of dower left outstanding. Some question has been made as to whether the value of this dower interest could be accurately calculated. There can be no difficulty, however, in ascertaining what this reversionary interest is worth. In Davis and Peck’s Mathematical Dictionary, and by Cyclopedia of Mathematical Science, pages 501 and 502, formulas are given by which the present .value of *734an annuity can be calculated which, is to commence at the death of one individual and terminate at the death of another. . In Emerson’s Miscellanies, pp. 96 and 97, can be found a like formula. The interest of the wife in the estate sold being susceptible of calculation, we see no hardship' in deducting the value thereof from the purchase money, if she is unwilling to relinquish her dower.”
Wright v. Young was cited and followed in Conrad v. Schwamb, 53 Wis. l. c. 378, and again in Docter v. Hellberg, 65 Wis. l. c. 423. We take it that Wright v. Young settled the question in Wisconsin and announces the doctrine in that jurisdiction.
The same doctrine has the support of the Supreme Court of Minnesota in Drake v. Barton, 18 Minn. 462 (467); and in Sanborn v. Nockin, 20 Minn. l. c. 186-7.
In some States, for example, in Maine, the equitable doctrine in hand has been grafted into the statutes. [Handy v. Rice, 57 Atl. 847.]
The rule in Massachusetts, Wisconsin, Iowa, Minnesota and New York is unreservedly adopted by the Supreme Court of Indiana and the Appellate Court of that State. [Wingate v. Hamilton, 7 Ind. 73; Hazelrig v. Hutson, 18 Ind. 481.] In the latter case the court, nisi, decreed the amount to be retained by the vendee • was the full sum to which the wife would have been entitled if her husband had been dead. On this ruling it was said: “There should have been an inquiry as to the respective ages of the said husband and wife, etc., and' the proper tables resorted to, to determine the question as to the amount which should be abated, and the correctness of the amount tendered, thereby determined. ’ ’
In Martin v. Merritt, 57 Ind. 34, the question was reagitated and that court cited a long list of its former cases commencing with Wilson v. Brumfield, 8 Blackf. 146, and held that its doctrine was sustained by the weight of authority elsewhere. [Page 40-1]. See, also, Maris v. Masters, 31 Ind. App. 235.
*735The rule we are contending for is the doctrine of the Supreme Court of Michigan. In Walker v. Kelly, 91 Mich. l. c. 217, it is said: “It,is insisted, however, that the contract is not enforcible, because the wife cannot be compelled to release her dower. There is no question but what the contract here was for a deed from both Kelly and wife, and, while the wife cannot be compelled to release her dower [citing Michigan cases], there is no reason why complainant may not have a decree for specific performance so far as defendant Kelly is concerned, and for compensation as to the dower interest of his wife .... There is no legal obstacle to the conveyance by a husband , of his interest in real estate, and, if so, why may not the husband be compelled so to convey, when he has contracted so to do, and to give compensation wherein he has failed to perform his contract?”
The same rule seems to obtain in Alabama. [Springle’s Heirs v. Shields, 17 Ala. 295.]
The importance of the question may possibly have justified pursuing the question so far. Such is the ingenuity of the human mind that a hard case may well be put against using life tables in computing the value of an inchoate dower right, but it is submitted that the same hard case can be put and used against any use of life tables as evidence! People do not live by a rule in mathematics. They die (and worms devour them) but not according to mathematical rule. Hence when a life table is used and the experience of mankind, derived from a close and wide observation in mortuary affairs, is thus made the aid and servant of judicial determination, the actual result may be wide of the mark, and register as a fact a thing that never would have happened. For example: A young widow has her dower commuted into- cash under the statutory table — h,er expectancy produces a large sum — it is hers to keep and hers to give — and yet she may die in the twinkling of an eye. So that, her dower estate commuted on a long *736expectancy of life if not commuted would have fallen •in in a 'day. A case may he put of the same character against the use of life tables in any other form of litigation. And yet the use of such tables is constantly recognized in matters of dower, and is the policy of our written law. Their use is growing in other forms of litigation and no good reason can be assigned why they may not be used to ascertain the present worth of the inchoate right of dower. It is the best the law can do. The evidence is the best of which the case in its very nature is susceptible, and, hence, may be received and acted on. If trouble exists, shall-the non-performing vendor alone have the advantage of them? ' Shall they be resolved alone in his'behalf in equity?
Finally, unless we hold that specific performance may be decreed in equity with compensation or indemnity for outstanding dower we put it within the reach of (nay, we invite) any vendor at his own whim in every instance to clap- the door of equity shut in the face of the vendee. To say the vendee shall take what the husband can give (which is less than he contracted to give) and yet pay the full purchase price for the whole title, amounts to no relief at all. The very statement of that proposition shows its inequity. He was entitled to a bird in hand — equity gives him one in the bush. He was entitled to bread — he gets- a stone. He was entitled to the whole estate — equity says to him, pay all and take part.
Granted that equity will not coerce the wife, granted that she is a ward of chancery — that is the delight of the law to protect her dower; yet, in decreeing specific performance against the husband with compensation for her outstanding right of dower, her wifely interests in his real estate are not abated by the tithe of one hair. They go to her in due time and season undiminished.
The decree, below should be affirmed.
Fox and Graves, JJ., concur.