(after stating the facts). The exceptions to be reviewed, eight in number, may be resolved into four general propositions in law.
I. The deeds of Thomas L. Harris and William F. Davidson, though made in fulfilment of an executory agreement, entered into, in each case, while the .dower right of the surviving wife was confined to lands whereof the husband was seized and possessed at the time of his death, were in fact executed after the change restoring the right of dower as it existed at common law; and therefore these tracts were encumbered by the right of dower of the plaintiff's wife, contingent upon her survivorship.
II. The lands are further liable to her contingent claim of homestead, for the like reason.
III. The tract, mentioned in the defendants' bond for title given to the plaintiff, is similarly encumbered, inasmuch as the dower right attached to the equitable estate thus vested in the plaintiff) and could only be restored to the defendant by her deed relinquishing it.
■ IV. No deed was tendered until in September, 1883, after both suits had been instituted.
I. The force and legal effect of the agreement and the rights and duties arising under them, must be determined by the law prevailing when they were made. The right of the vendee to have such title as the vendor could then convey, and the capacity of the vendor to convey his estate, free from the claims of dower *314or homestead afterwards given, in other words the absolute dominion of the owner over his own property, is too well settled to be open to controversy, and we will only refer to some of the adjudged cases. Sutton v. Askew, 66 N. C., 172 ; Wesson v. Johnson, 66 N. C., 189 ; Bunting v. Foy, 66 N. C., 193.
The same doctrine applies to the homestead exemption. Bruce v. Strickland, 81 N. C., 267; Reeves v. Haynes, 88 N. C., 310.
From this it results, that a contract to convey, followed by a deed of conveyance, rests upon the same principle, and the deed is referable for its operation, to the time of the contract which it undertakes to comply with. Bunting v. Foy, supra.
These remarks dispose of the two propositions which embody the first three exceptions.
II. The foui'th and fifth exceptions, comprised in the third proposition, rest upon a different basis, and are not entirely free from difficulty. The execution of the bond for title by the defendant to the plaintiff, transferred to him an equitable estate in the tract which it embraced, and to this the wife’s inchoate right of dower at once attached, for, under the statute, she is endowa-ble equally in trust and legal estates. The Code, §2103. This right, contingent upon her surviving her husband, can only be, divested by a deed executed by both, in the manner prescribed for the conveyance of a feme covert’s real estate. Her refusal to unite in the deed, creates the obstacle in the way of his passing the estate in this part of the land unincumbered, as seems to be provided in the plaintiff’s bond. The referee finds that it was agreed by parol between the parties, at the time of executing the bond for title and the notes for the remaining purchase money, that the plaintiff should not make a deed for this part of the land, but should, instead, surrender to the defendant his title bond, in executing the contract to convey, when the purchase money was paid.
While this oral understanding, part of the general agreement carried out in the execution of the title bond and of the notes, *315cannot be allowed to control or modify the plaintiff’s positive stipulation to make title to all the land, including this with the other, it is a proper matter to be considered in determining whether coercive relief shall be refused, because of an objection founded upon this defect. The parties understood that the restoration of title to this part, was to be effected by the surrender to the defendant for cancellation of the executory contract, and such is the legal effect of this action, as between the parties themselves, and the principle is applied to an unregistered deed, given up to the maker and destroyed, when no intervening interests have attached to be affected thereby. So it is decided in the cases cited in the plaintiff’s brief. Hare v. Jernigan, 76 N. C., 471; Miller v. Tharel, 75 N. C., 148; Davis v. Inscoe, 84 N. C., 396 ; Austin v. King, 91 N. C., 286.
But aside from the uncertainty of any future disturbance from an assertion of the dower right; dependent as it is upon the wife’s surviving her husband, and choosing to demand that it be laid off upon this particular part, while other land, with the mansion house upon it, is open to her claim, the defendant, as the referee finds, at the time, knew that the plaintiff was a married man, and did not require that his wife should be a party to the agreement, nor anything more of the plaintiff, than his execution of the bond, and that with an understanding that the return of his own covenant to make title should be a compliance with the plaintiff’s contract as to this tract., the legal estate in which remained in himself.
A recent author, referring to a demand of the vendee for specific performance of a contract to convey land, uses this language: “If the vendee knows that the vendor is a married man, he knows that his wife is entitled to dower, and that she cannot be compelled to release her dower right; and entering into the contract with such knowledge, he is not entitled, within the doctrine as well established, to ask any thing more than the husband can give. It is the vendee’s knowledge, and not any notion of making a new contract for the parties, which prevents the purchaser *316from obtaining compensation. On the other hand, if the vendee entered into the contract in ignorance that the vendor was married, and under the supposition that the vendor could give an unencumbered title, then he ought to have a specific performance with an abatement from the price.” Pomeroy on Specif. Perform., §461.
While this is said of a vendee seeking to have the vendor’s contract executed, and does not apply to a case where the relation of the parties is reversed, and relief is demanded by the vendor against the vendee, it nevertheless asserts a proposition not altogether foreign to the present controversy. The present action looks to a judicial appropriation of property in the hands of a creditor, retained as security for his debt contracted in the purchase, to the discharge of the debt, if necessary.
As vendor and vendee stand in many respects in the same relation as mortgagee and mortgagor, when the estate is retained and held as a security for the purchase money of land, the action in this feature, is very like that of a proceeding for foreclosure and sale, and should be treated upon the same equitable principle.
We think, therefore, that the defendant will be sufficiently protected by the plaintiff’s warranty deed, with covenants against encumbrances, present and prospective.
The last exception, based upon the plaintiff’s failure to tender his deed before bringing suit, is untenable.
The rule is well settled, that it is sufficient if the vendor is able and prepared to convey title, even at the trial. Hepburn v. Dunlop, 1 Wheat. (U. S.), 179, 2 Story Eq. Jur. §777; Hughes v. McNider, 90 N. C., 249.
The refusal of the Judge to allow a reference for the purpose of taking testimony upon matters of equity addressed to him, after the submissions of issues of fact to the jury and their rendering responses thereto, and after the consent order of reference as to the plaintiff’s title, rested in his discretion, and is not a reviewable error in law.
*317The parties went to the jury upon all controversies about the facts deemed by them to be material, and the equitable functions of the Court are called into exercise upon their findings. The application.was not allowed, for the reason that an opportunity had been afforded for the submission of all inquiries, if deemed material, and not being made use of when offered, the defendant cannot, of right, afterwards require the re-opening of controversies that ought then to have been settled. The reason assigned sustains the action of the Court.
The last and remaining inquiry, is as to the effect of the finding, that the plaintiff employed “ strategy in bringing about the agreement,” a term used in the operations of armies, conducted by a skilful commander, and implying tact and art in military manoeu-vering, and is not very appropriate to the transactions of civil life. If artifice and fraud were resorted to and used in inducing the contract, it would not be enforced against the wronged party. Butin the light of the further finding, that the land was at the time worh $5,000, nearly as much as the price agreed to be paid, and that the defendant was “ competent to make the contract,” it must be inferred that the jury meant to say in their verdict, that it was brought about by acts, and perhaps representations, not in themselves unlawful, but such as are common to persons entering into contract relations, each endeavouring to make the best terms for himself in the transaction. Putting this interpretation upon the verdict, in the use of the term, it interposes no impediment in the wmy of enforcing performance of the contract. If it was intended to convey a meaning incompatible with fair dealing, and approximating to that conveyed in the word “stratagem,” which implies artifice, trickery, deception, and perhaps even positive fraud practiced, it is enough for us to say, we are unable, in connection with associate findings, to give it this sense, and thus debar the plaintiff of redress. The verdict determines the facts, and we are not at liberty to go outside of it in search of others. Shields v. Whitaker, 82 N. C., 516; Leggett v. Leggett, 88 N. C., 108; Wessel v. Rathjohn, 89 N. C., 377 ; Worthy v. Shields, 90 N. C., 192.
*318Upon a consideration of the whole case, we find no error, and must affirm the judgment. Modified as suggested in the opinion.
No error. Modified and affirmed.