35 Ala. 503 | Ala. | 1860
It is contended, that this suit was not brought in the names of the proper parties plaintiff. The objections are, that the exclusive right of action was in the commissioners, who sold the land; that if the married woman who is a plaintiff, was a proper party, her husband should have been joined with her; and that a guardian, in such a case, has no right of action in his own name, for the use of his wards.
Finding none of the grounds of demurrer to the complaint well taken, we decide that there was no error in overruling it.
Section 1551 of the Code specifies five classes of agreements, every one of which, it declares, is void, unless the “agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing.” The fifth of those classes is described as follows: “Every contract for the sale of lands, tenements, or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase-money, or a portion thereof, be paid, and the purchaser be put in possession of the land of the seller.” Section 1552 prescribes, that if the sale is at public auction, and “the auctioneer, his clerk, or agent, makes a memorandum of the property, and the price at which it is sold or leased, the terms of the sale, the name of the purchaser or lessee, and the name of the person on whose account the sale or lease is
In Ledbetter v. Walker, (31 Ala. 175,) it was decided, that a verbal authority was sufficient to authorize an agent to sell land; but the sale in that case was made before the Code weut into operation. There are authorities which hold, that one standing in the attitude of the commissioners appointed to make the sale now before us is the'agent of the purchaser ; and that a memorandum, made by such agent, would bo a compliance with the statute of frauds. Wolfe v. Sharp, 10 Rich. 60. But the concession, that the commissioner who made the memorandum in this case was the agent of the purchaser, is not enough. Under our statute, ho must not only be the purchaser’s agent, but he must be thereto authorized in writing.
If the plaintiffs’ replication can be maintained at all, it must be upon the ground, that the commissioner was the auctioneer, and, as such, was authorized by section 1552 to make the memorandum. Whether or not he was th(/auctioneer, depends upon the question, whether the auctioneer is he who cries the sale, or the seller who employs him to cry the sale. The case of Wolfe v. Sharp, (10 Rich. Law, 60,) cited by the appellees, merely asserts, that the commissioner in equity was the agent of both parties. Neither that case, nor the case of Gordon v. Sims, (2 McCord’s Ch. 151,) to which it refers, asserts that the commissioner in equity is an auctioneer, when he employs the agency of another to conduct the sale. Endicott v. Penny, 14 S. & M. 144 ; Brown on the Statute of Frauds, § 369. The auctioneer is the agent both of the seller and of the purchaser. This being the ease, it would seem impossible that one appointed by the court to sell propert}7 can be the auctioneer, when he employs the agency of another to auction off the property for him. If a person so appointed could, under such circumstances,
A professional auctioneer, pursuing the business of selling at auction for others, notwithstanding be might employ another to cry the sale for him, would doubtless be an auctioneer, within the meaning of section 1552 of the Code. But he stands in quite a different relation to the purchaser, from that in which the commissioners in this case stood. The auctioneer by occupation, who employs another to cry the sale, is an auctioneer still; and the purchaser may be regarded,by bidding at a sale made by him in his capacity of auctioneer, through the instrumentality of a crier, as constituting him an agent, under the section above stated, to bind him by a memorandum of the sale. The same thing cannot be said of a commissioner appointed to sell, who employs an auctioneer. — Emerson v. Heelis, 2 Taunt. 38.
We decide, therefore, that the commissioner who made the memorandum, was not an auctioneer, within the meaning of section 1562 of the Code ; and the defendant’s demurrer should have been sustained to the plaintiffs’ second replication, if the plea of the statute of frauds is available in the case.
The replication does not allege, that the commissioner who made the memorandum, was the clerk or agent of the auctioneer; and therefore the question, whether the memorandum would have been sufficient, if made by the agent or clerk of the auctioneer, does not arise in the case.
The act under which the sale was made, (Pamphlet Acts 1855-56, p. 20,) does not in terms require, that the sale made under its authority should be reported to the probate court for confirmation. It requires, however, that the sale should “ be conducted in all respects as is done when property in the hands of an executor or administrator is to be distributed.” Now, real estate is, perhaps, in strict correctness of language, never “in the hands of an executor or administrator to be distributed;” but it requires no very great latitude of construction to infer, that the legislature, in framing this law, regarded land to be sold by an executor or administrator for division as property to be distributed, and designed that the sale of land under the act of 1856 should be conducted in
From the conclusion that the law required a report of the sale in this case to the probate court for its confirmation, it necessarily follows, that the sale was a judicial sale, under the definition given by Judge Story. It remains to be decided, whether, being a judicial sale, it is without the operation of the statute of frauds.
Lord Hardwicke’s decision, in the Attorney-General v. Day, (1 Vesey, sr. 218,) seems to be the first reported adjudication upon the subject, and is the foundation of all the subsequent cases. That decision seems to have been made in reference to a contract to purchase land, made by the master, under an order of the court, for the purpose of investing a charity fund. The agreement to purchase was reported, and the report was confirmed; and the question was as to the’execution of the agreement. The lord chancellor said: “ But the present is a judicial sale of the estate, which takes it entirely out of the statute. The order of the court was not interlocutory, but made part of the decree, as it always is on the matter
The doctrine here asserted is, that the purchase is, after confirmation, without the statute, and that the decree of confirmation takes it out. Browne, in his work on the Statute of Frauds, (§ 265,) takes the same view of the extent of the decision, saying, “ The decision ofLordllardwicke was simply that, after confirmation of the report, the parties were bound to carry out the sale, notwithstanding no memorandum of it had previously been made in writing.” Sugden, in his work on Vendors, gives the same operation to Lord Hardwicke’s decision, (see marginal pages 135 and 136,) and expressly places the doctrine upon the gi’ound, that the judgment of the court in confirming the purchase takes it out of the statute. The same view is also taken in Dart on Vendors, 555, note 2.
Judge Story, in Smith v. Arnold, (5 Mason, 420,) evidently referred the exemption of such sales from the operation of the statute of frauds to the decree of confirmation, for he remarked: “ lie (the purchaser) becomes a party in interest, and may represent and defend his own interest; and if he acquiesces in the report, he is deemed to adopt it, and is bound by the decree of the court confirming\ the sale."
Chancellor Kent, in Simonds v. Catlin, (2 Caines’ R. 61,) when deciding in reference to a sheriff’s sale, made a criticism of some severity upon Lord Hardwicke’s decision and seemed to have regarded it in a diffei’ent light; but it is manifest that that learned jurist did not observe — ■
In South Carolina, the court, in reference to the decision in the Attorney-General v. Bay, made this remark : “ It has been decided, that a sale by the master is a judicial sale, and that the confirmation of the repoi’t takes it out of the statute.” — Gordon v. Sims, 2 McCord’s Ch. R. 164.
The Virginia court of appeals, in Brent v. Green, (6 Leigh, 24,) distinguished, as did Judge Story in the case reported in 5 Mason, between judicial sales, and sales which did not require “confirmation. In this case, the decree of confirmation is treated as the agency which relieves judicial sales from the statute, and a determination is shown to narrow the operation of the rule, and to confine it to sales technically judicial.
This collation of the authorities leads us to the decision, that judicial sales are not taken out of the statute of frauds, until the decree of confirmation, and then only by virtue of that decree. There was no decree of confirmation of the sale to the defendant, and it is, therefore, not exempt from the operation of the statute.
There is no ground upon which we can approve the action of the court in overruling the demurrer to the plaintiff's second replication, and-we decide that the court erred in its judgment upon that demurrer.
"We do not deem it necessary to pass upon any of the other questions presented by the bill of exceptions.
Judgment reversed, and cause remanded.