52 Miss. 315 | Miss. | 1876
delivered the opinion of the court.
The heirs of Perry Cohea brought ejectment in the circuit court of Hinds county against the heirs of Thomas Barrett, and against the Vicksburg & Meridian Railroad Company, for the recovery of a certain tract or parcel of land in the city of Jackson.
Thereupon the heirs of Barrett and said railroad company filed the bill in this cause enjoining said ejectment suit, setting-up an equitable title to the land in themselves, and praying for a divestiture of the legal title out of the Cohea heirs, and its investiture in them. They had decree in the chancery court, from which the heirs of Cohea appealed. The correctness of this decree depends upon whether complainants have sufficiently established their equitable title, and this in turn depends upon testimony, in great measTire parol, to a considerable extent conflicting and obscured by long lapse of years and destruction of papers. Without going into it in detail, or giving in full the reasons which have conducted us to our conclusion upon the -facts, we will indicate what in our opinion are the facts as established by the weight of the testimony, and then pronounce the law arising thereon. \
Perry Cohea died the owner of the land in controversy. By his last will and testament he appointed L. J. Stone, Samuel Matthews, and David A. Cohea his executors. The 14th
The other executor Cohea was present, actively superintending the sale. At the sale the parcel of land in controversy, designated on the map, and since known, and subsequently conve3red and described, as lot No. 12, was struck off to John H. Echols, from and under whom complainants claim, for the ■sum of $789.30. Three days after the sale Echols paid to the executor Cohea the sum of $263.10, being one-third of the amount of his bid, and took his receipt therefor, 'which receipt is preserved, and was filed with Echols’ deposition. It fails to designate the lot purchased or the price to be paid. A few days thereafter the executor Cohea carried to George L. Potter, the attorney of the estate, the map made by the surveyor preparatory to the sale, showing the lots into which the land had been divided, and also delivered to him one of the printed advertisements of the sale, giving the time, place»
The deeds, however, were not delivered until all the money was paid, and, as the sales had been made partly on time, there was of course no need for hurry.
In addition to this, the state of Mississippi at that time held a large judgment against Perry Cohea’s estate, which was in the course of compromise and settlement, and Potter advised the executors not to collect the purchase money until that settlement was effected. This produced delay in the payments of purchase money and delivery of the deeds, in the first instance, and the breaking out of the war shortly after this old judgment was settled doubtless produced still more. At all events the deferred payment was never made in full by Echols. During the war the deeds, which had already been signed and acknowledged by David Cohea, were sent to Panola comity and signed
The description of the lot is, we think, sufficiently made out by the number of the lot, and by the copy of the map preserved by Echols and identified by Potter.
The price to be paid is exactly fixed by the stipulation contained in the printed advertisement, that one-third was to be paid in cash, the amount of which third is shown by the receipt of David Cohea, given to'Echols.
As to the time when the balance was to be paid there is
Echols took possession under his purchase at the aution sale, and he and his vendees, the present complainants, have been in quiet and uninterrupted possession ever since, notoriously claiming as owners in the face of the Cohea heirs, some of whom have lived all the timein the immediate vicinity of the property.
In the meantime the property has greatly enhanced in value, and costly improvements have been erected thereon.
Other purchasers at the auction sale have also held undisturbed possession, under deeds executed in accordance with the terms of the bids made at the auction.
Complainants, in their bill, offered to pay the balance due on the Echols bid, and in the decree of the court below it was ordered accordingly.
Upon these facts the legal question presented is whether there has been such written memorandum of the sale of the land as is required by the statute of frauds. It was much questioned at an early day whether auction sales were within the statute. Whatever doubt may have existed on the subject seems to have been put at rest by Lord Ellenborough’s decision in Hinde v. Whitehouse, in 1806, reported in 7 East, 558, and since that time it has not been questioned in England or America. Equally well established are certain principles peculiar to this class of sales. The auctioneer acts as the agent of both the vendor and vendee ; of the former from the inception of the bidding, of the latter only from the coming down of the hammer and the acceptance of his bid. Benj. on Sales, 190; Wardlow v. Harrison, 1 Ell. & Ell., 294. From the acceptance of the bid the auctioneer becomes the agent of the bidder, so far as to bind him by putting down his name opposite to the article sold on the auction list; and this may be done either by the auctioneer or by the person acting as his clerk, provided it is done at the time of sale. A delay only of a few hours has been in some cases held fatal.
It is necessary, however, especially in cases of realty, that this
Tested by these rules, we think a sufficient compliance with the statute has been shown in this case. It is proved by Echols that the written or printed advertisement which Potter testifies was signed by the executors was present at the sale, and contained the terms upon which the land was to be sold. The surveyor’s map of the lands, indicating by numbers its several subdivisions into lots, was present at the sale, and the lots were sold by the numbers according to the map. The map and the advertisement were then carried’ by one of the executors to Potter, and indorsed upon the back of the advertisement were the numbers of the several lots, as shown by the map, and opposite each one the name of the purchaser and the price. The executor told Potter that this was the memorandum of the auctioneer. We are satisfied, from all the circumstances of the case, that it was his memorandum, or that of some duly authorized clerk.
From the memorandum and map thus furnished Potter was enabled correctly to prepare deeds for the several purchasers, which were signed and acknowledged by the executors, but were never delivered to the vendees. We think the preparation and signing of the deeds important facts, as showing the accuracy of the written data, and the participation of the executor Matthews in the whole transaction. They have been pressed upon our consideration as being of themselves a sufficient writing to take the case out of the statute of frauds. Two
We are not inclined to concur in the opinion of tbe Virginia court, but ratber to adhere to tbe doctrine announced by our predecessors, in Johnson v. Brook, 31 Miss., 17, to tbe effect that no written instrument, however perfect, is sufficient of itself to convey title to land so long as it remains in tbe exclusive possession of tbe vendor. This point, however, not being essential to tbe case at bar, is left to stand upon the decision in 31 Miss.
It was earnestly argued by counsel for appellants that even if all tbe formalities requisite to an auction sale bad been complied with, but no deeds made nor money paid or secured in full, no relief could be granted, because, first, tbe will of Perry Cohea did not authorize bis executors to sell tbe land in this manner; and, second, that even if it did, tbe power died with them and could not be exercised by a commission to be appointed by a court of chancery. Tbe first proposition rests upon tbe assumption that an auction sale of land is only an incomplete and executory contract until tbe delivery of a deed. This is erroneous. It is complete as a sale, though tbe legal title does not pass until tbe deed is delivered, just as in tbe case of a title bond, or of a receipt given for purchase money, specifying terms and tbe land sold. There is no restriction upon the mode of sale contained in the will. Tbe power is broad and unlimited. They may make, therefore, any sale which tbe law recognizes as such. Tbe second position is also fallacious. It is true that powers conferred by will upon one person, by name, cannot ordinarily be executed by another; but that is not what is sought bore. Tbe power conferred by tbe will in this case was to make sale. That power was executed, as we have seen, in one of tbe modes recognized by law, by tbe executors named.
The executors being now dead, it is only asked that tbe chancery court, through its commissioner, may deliver tbe
Let the decree be affirmed with costs.