73 N.J. Eq. 601 | New York Court of Chancery | 1908
The bill in this cause was filed for the specific performance of an agreement for the sale of lands entered into by Willis P. Bainbridge, Esq., as agent and attorney in fact for the defendants, Horace G. Hough and Edith Hough, administratrix, with Alexander Campbell, the complainant. The agreement is in writing under date of October 5th, 1907, and recites that the sale is to be made in consideration of $6,000; part thereof, $600, being paid to Mr. Bainbridge upon its execution; $2,200 to be paid December 5th, 1907; and the balance, $3,200 to be satisfied by the assumption bjt Mr. Campbell of the mortgage on the premises for that amount; the deed to be one of general warranty, and the Houghs to pay all taxes due in December. This agreement contains an acknowledgment. The certificate reads that Mr. Bainbridge acknowledged that he signed, sealed and delivered the instrument as his voluntary act and deed. Incidentally, the bill prays an injunction against the defendants from selling to James M. Donald the lands mentioned in the agreement, who, the bill alleges, had entered into a contract with the defendant, directly, for the purchase of the same premises. Both Mr. Hough and Mrs. Hough deny that they authorized Mr. Bainbridge to bind them by writing at all, and Mr. Bainbridge only says that he told Mr. Hough that he would sign the agreement, and that he, Mr. Hough, said “all right.” Mr. Bainbridge does not say that Mrs. Hough authorized him to sign any agreement, only that she authorized him to sell. The sale, as before remarked, was to be for $6,000, and while the question of who was to pay commissions, the buyers or the sellers, is disputed, there is no dispute about this, namely, that Mr. Bainbridge had no authority to bind the Houghs to pay the taxes due in 1907, nor to make a deed of general warranty free from all encumbrances except the mortgage, which was to be assumed as part of the consideration.
Neither in the bill of complaint nor in the affidavit of Mr.
A question concerning the use of this cross-examination was presented on the hearing of the order to show cause, and arose in this wise: Counsel for the defendants stated that there was no averment in the bill or affidavit that Mr. Bainbridge was authorized to enter into an agreement in writing to bind them. Counsel for the complainant asserted that Mr. Bainbridge, in his cross-examination, stated that he thought Mr. Hough said that when he was ready to have an agreement signed to let him, Mr. Hough, know, and he would sign the agreement, and that Mr. Bainbridge told him that he, Mr. Bainbridge, would sign the agreement, to which Mr. Hough said "all right.” Counsel for the defendants objected to the use of this cross-examination by the complainant, saying that it would not be offered or used on behalf of the defendants who procured it to be taken. The rule referred to provides that the chancellor or vice-chancellor before whom an order to show cause why an .injunction should not be granted, or a motion to dissolve an injunction already granted, comes on to be heard, may order that an affiant, whose affidavit is annexed to or accompanies the bill, or is presented on the part of the defendant, shall appear and submit to cross-examination in respect to the matter contained in. his affidavit, under such direction as to notice and time and officer examining, before whom such cross-examination shall be taken as may be prescribed in. the order. Pending,the hearing pn.the order to show cause counsel for the defendants applied to me for an order that Mr. Bainbridge submit to such cross-examination, and I advised an order for that purpose. The examination, taken under that order, in my judgment, is,evidence for either
On the filing of (he bill an order was made requiring the
Counsel for the defendants contend that the acknowledgment to the agreement for sale was defective in that the agent who signed the instrument acknowledged that he signed, sealed and delivered it as his voluntary act and deed, instead of doing so in the name of, and as the voluntary act and deed of, his principals. This objection is valid, but as the agreement did not need an acknowledgment to give it efficacy, the objection is ineffective.
The first question presented for solution is, was Mr. Bainbridge authorized by the defendants to make the agreement in waiting which he signed on their behalf,'so as to charge them with the obligation of making the conveyance.
It is settled law in this state that the statute of frauds is satisfied with the signature of an agent, to an agreement to convey lands, provided the agent has express authority to bind the principal by waiting, and this authority may be by parol. Milne v. Kleb, 44 N. J. Eq. (17 Stew.) 378; Lindley v. Keim, 54 N. J. Eq. (9 Dick.) 418. The authority, however, must be such as to permit the making of the identical contract sued on, and not a contract differing from the one actually authorized. Morris v. Ruddy, 20 N. J. Eq. (5 C. E. Gr.) 236.
In the case of Lindley v. Kevm, ubi supra, referred to on the oral argument as the O’Reilly Case, the court of errors and appeals said (Lindley v. Keim, 54 N. J. Eq. (9 Dick.) ’422, that courts should require the proof of authority in an agent to sign a memorandum in waiting for the sale of lands by parol to be clear and decisive. This, of course, means not only that proof of the authority generally must be clearly and decisively shown, but, also, that the agent had authority to make all of the terms for his principal which he incorporates into the agreement.
Speaking now to the facts with reference to the question of authorization of Mr. Bainbridge to bind the defendants by memorandum in waiting for the sale of their lands, it may be remarked that Mr. Hough denies that he gave authority to the agent to sign a waitten agreement in his behalf; so, also, does
Another thing: Both Mr. Hough and Mrs. Hough testify that they were only willing to'sell the farm for $6,000 net to themselves, and would not pay commissions out of that sum. Mr. Bainbridge testifies that they were to pay commissions. The agreement which Mr. Bainbridge assumed to make on behalf of the defendants is silent on the subject of commissions, and thereby the purchaser was not bound to pay them, but the defendants who employed the agent were left to pay the commissions. Morris v. Ruddy, 20 N. J. Eq. (5 C. E. Gr.) 236, 238. This was a departure from the terms of the authorized sale, and while the question of fact in this regard is disputed, I must, under the rules of law, find in favor of the defendants, because the complainant’s evidence on this question, does not preponderate.
It follows, therefore, that the agent was not clothed with authority to bind the defendants in writing for the sale of their lands, and, whether so or not, that the written, agreement departed from the terms of sale confided to the agent. If such contract made by an agent varies from his instructions, the principals will not be bound by it. Morris v. Ruddy, ubi supra.
This finding is alone dispositive of the case, but there were •other questions raised upon the argument, all of which were important, and I will therefore proceed to decide them.
The premises in question were owned by the defendant Horace G-. Hough and his brother, the late Dr. John Stockton Hough, as tenants in common. Dr. Hough died intestate May •6th, 1900, leaving the defendant Edith Hough, widow, and Arthur S. Hough, Edward R. Hough, Henry S. Hough, Douglass R. Hough, John S. Hough and Robert H. Hough, his children, and only heirs-at-law. Mrs. Hough, the widow, was
If the agreement in this case, and all of its terms, had been one which the agent was authorized to make in writing, then I think it would be enforceable by the decree of this court, provided the proceedings for sale were regular and if the sale were confirmed by the orphans court. In such event this court could undoubtedly order the contract specifically performed. Wortman v. Skinner, 12 N. J. Eq. (1 Beas.) 358, 381, 384; Young's Admr. v. Rathbone, 16 N. J. Eq. (1 C. E. Gr.) 224.
Proceedings in the orphans court for the sale of lands for the payment of debts are proceedings in rem, and the heirs-at-law are not ¡Darties, at least they are not parties eo nomine, and jurisdiction over them is obtained pro hac vice by publication, without personal service. Lawson v. Acton, 57 N. J. Eq. (12 Dick.) 107, 114. This being so, the children of Dr. Hough are not, in my judgment, either necessary or proper parties to a bill for the specific performance of an agreement for sale by the representative of his estate having power of sale under an order
It is urged that the orphans court may confirm the sale before final hearing in this cause, but I doubt it, as the sale to Mr. Donald, disclosed by the answer and affidavits of the defendants, is for about $600 more than that called for in the agreement under consideration; and a sale by Mrs. Hough, as administratrix, does not fall within that class of cases of which Morrisse v. Inglis, 46 N. J. Eq. (1 Dick.) 306, is an example, and in which the court of errors and appeals held that judicial sales made without irregularity or fraud and not affected by accident or mistake will not be set aside for mere inadequacy o-f price; but such sale is affected by section 85 of the Orphans Court act (P. L. 1898 p. 745), which commits the question of confirmation or rejection without limitation to judicial discretion, as construed by Ryan v. Wilson, 64 N. J. Eq. (19 Dick.) 797. While this question is one which concerns the final disposition of the cause, it is noticed now, because, unless a preliminary injunction shall go, the complainant may be, and probably will be, deprived of an opportunity to have a specific performance of this agreement, even if entitled to it, for the
Tt was also urged on behalf of the defendants that Mrs. Hough could not malee a deed of general warranty free from encumbrances, except, of course, the encumbrance specifically excepted. This is a valid objection. The Orphans Court act (P. L. 1WS p. 749 § 94) provides what estate shall vest in the purchaser, namely, all of the estate of which the testator or intestate was seized at the time of his death if the order to show cause be obtained within one year thereafter, and if not obtained within that time, then all the estate of which the heirs or devisees of the testator were seized at the time of the making of such order. That is not all. The power of an administrator to sell lands under an order of the orphans court is a naked power and must be strictly pursued. Den v. Lambert, 13 N. J. Law (1 Gr.) 182. In Lindley v. Keim, ubi supra, the court of errors and appeals said (9 Diclc. 488) that the donees of the power of sale under O’Reilly’s will could not bind his estate to make a good title.
Another ground urged by the defendants is that the contract is joint, and that neither of the defendants contemplated selling an undivided half to the complainant disassociated from the sale of the other half to him at the same time, the contention being that if the agreement were valid as to one defendant and not as to the other, there could be no decree for the performance by the one on whom the agreement was binding, because that would thrust upon the one not selling a co-tenant unselected and possibly objectionable. But this, in my judgment, is inadmissible, because no tenant in common has the right to say who his co-tenant shall be, for any co-tenant being sui juris can alienate his undivided interest without any restraint from the other. The complainant could avail himself of the inability of either of the defendants to convey, and refuse to accept an un
A direct authority for decreeing specific performance against one tenant in common, under an agreement to convey lands which is void as to a co-tenant, is to be found in Keator v. Brown, 57 N. J. Eq. (12 Dick.) 600; also in Milmoe v. Murphy, 65 N. J. Eq. (20 Dick.) 767. In order to obtain such relief, however, the complainant must pray for it specially, and, if he does not do so in the first instance, he may apply to amend. Keator v. Brown, ubi supra, 602. It seems that there can be no decree for the conveyance of a part only of the premises in question in a given suit under the prayer for general relief, but that the complainant, if he desires such relief, must, in his pleadings, or at least on final hearing, consent to accept part performance. Milmoe v. Murphy, ubi supra. In a proper case an amendment would be allowed. In the cause under consideration (as in the Keator Case), the interest of Horace G. Hough is ascertained as to quantity and price, and not the slightest difficulty would be experienced in compelling him to convey his share. This, of course, upon the assumption that the contract as to him were binding, and, also, that the complainant who prays for a specific performance of the whole contract, should desire to obtain the share of Horace and would ask leave to amend the bill accordingly. This he could doubtless do under the authority of Keator v. Brown, supra.
Upon the argument of the order to show cause I was strenuously urged to make the order absolute and thus preserve the subject-matter of the suit until the final hearing. This I am unable to do. Where an injunction is sought in aid of specific
This disposes of all the questions raised upon the argument, and leads to the discharge of the order to show cause.