9 Wend. 68 | N.Y. Sup. Ct. | 1832
By the Court,
The first question is whether the agreement of December 11, 1828, is binding upon all the defendants ? This contract is the basis of any liability which may rest upon any or all of the defendants. It was signed by Kingsbury, “ for self, Goodrich and Champion ” The proof of the execution by Kingsbury proves nothing against the other defendants. It shews the instrument to be the deed of Kingsbury: but to make it the deed of Goodrich and Champion, something else must be proved ; it must be shewn that Kingsbury had authority to act for them; and as he professes to act by deed, an authority from them under their seals is indispensable. “ An authority to execute a deed must be given by deed.” 1 Comyn’s Dig. Atty C. 5. In the case of Banorgee v. Hovey, 5 Mass. R. 11, the action was assumpsit for money advanced to one Smith, who was concerned with and had authority from the defendants to procure it. Smith gave a bond, which his authority did not specify, and the court held the defendants not bound, as Smith attempted to bind his partners and employers by deed without any authority so to do. In that case the objection is admitted to be technical, but not therefore to be disregarded. 5 Bin. 613, and 1 Yeates, 200, are to the same effect. Even partners are not permitted to bind their co-partners by seal, unless the co-partners are present and assenting.
The defendants in this case were not partners, but tenants in common, of the lands in Ohio, which were to be conveyed to the plaintiff. One tenant in common has no power as such to convey or dispose of the lands of his co-tenant, and cannot execute a deed of the lands of his co-tenant in any other manner than a stranger. That an authority to execute a deed must be given by deed, to render the deed valid, was recognized by this court in Van Ostrand v. Reed, 1 Wendell, 431.
The same observations apply to the evidence respecting Champion’s admissions; they were merely parol and general that he owned lands in Ohio in company with the other defendants, and that Kingsbury was their agent to sell and dispose of them. The legal presumption is, that he spoke of a legally authorized agency; but no appointment is produced, no notice to the defendants to produce it, no act of Champion’s in affirmance of the contract made by Kingsbury, and no allusion in his conversation to this case. To admit evidence of this description would be a total dispensation with the rule that an authority to execute a deed must be by deed ; it would be dangerous in its consequences, and alarming to the owners of real estate.
If, however, the contract of the 11th December had been proved, that was all the contract with which Champion had any connection even nominally and by it Blood’s conveyance on the 1st of March, 1829, was a condition precedent to the conveyance to be made by the defendants; there is no pretence that a conveyance by Blood was then offered. Indeed, it is proved by the declarations of Blood that on that day an offer was made by the defendant Goodrich to fulfil the contract on his previous performance. If, therefore, the plaintiff had declared upon the sealed contract, and its execution by all the defendants had been proved, no cause of action is shewn, but is disproved. The plaintiff, however, does not rely upon the sealed contract, except as inducement to a parol contract—a parol contract to sell and convey lands; a contract void by the statute of frauds, made by two of the defendants only, and without any authority whatever from the third. The plaintiff contends that the parol contract of the 31st January, 1829, was valid as a mere extension of the time of performance of the sealed contract. The rule is well established.. that a written instrument shall not be contradicted by parol, but any ambiguity about it may be explained, or an additional agreement affecting the subject may be made by parol when a parol agreement is valid. Such was the case of Franchot v. Dart, 5 Cowen, 506. There no place having been
It was further objected that the plaintiff should have prepared and tendered a deed to each of the defendants for execution. I understand the rule in this state to be, that the party entitled to the deed must demand it; if it is not refused, he should, allowing a reasonable time for the defendant to prepare and execute it, present himself again to receive it, 7 Wendell, 129; but if, on demand, the defendant positively refuses, it would be idle to make another demand. So, too, the party is entitled to the whole title, and if upon demand any one of those whose duty it is to convey, refuses to do so, it would be unnecessary to make demand of the others. In this case the demand was made of Goodrich, who refused ; there was therefore no necessity to call on Kingsbury or Champion, for if they should convey, the plaintiff would not have the whole title.
It is unnecessary to discuss any other points in this case. In my opinion the plaintiff failed to prove the contract of December 11th, 1828, and therefore a new trial must be granted.