72 S.E. 150 | N.C. | 1911
The facts are sufficiently stated in the opinion of the Court by Mr.Justice Walker. This action was brought to recover damages of the defendant for failure to comply with a bid made by the plaintiff at a sale, under a power contained in a mortgage to him. On 9 January, 1905, Richard Harris and wife executed to the defendant, Caleb Harris, a mortgage on land, to secure the payment of a certain indebtedness, with power of sale in case of default by the said Richard Harris in the payment of the debt. On 21 December, 1909, the mortgagor having failed to pay the debt, the defendant advertised the land for (90) sale, under and by virtue of the power vested in him by the deed of mortgage, and on 22 January, 1910, he sold the same through an auctioneer, J. C. Spence, at public outcry, and one Cader Jennings, who was and is solvent, bid the sum of $1,500 for the land and it was struck off to him at the said price. The auctioneer immediately made, on the back of the notice of sale, the following entry: "Sold to Cader Jennings for $1,500, 22 January, 1910." After the sale had been completed and after the bidders had dispersed, the said Jennings refused to comply with his bid, and stated to the auctioneer, in the presence of the defendant, that he was bidding for Elijah Harrell; that he did not want the land himself, and that he would have to sell it again. Under the advice of a friend, the auctioneer sold the land again on the same day, after the bidders had dispersed, the defendant being present at the sale, and also the said Cader Jennings, and the plaintiff became the purchaser at the price of $1,175, there being only a few persons at the sale and no new advertisement of the sale having been made. The defendant refused to make title to the plaintiff, and executed a deed for the land to Cader Jennings, who, in the meantime, had agreed to abide by his *74 purchase. Out of the money paid by Jennings, the defendant retained a sufficient amount to pay his debt and expenses of sale, and paid the balance over to the mortgagor, whose consent was never given to the second sale. The plaintiff now sues to recover the difference between the real value of the land, that is, $1,500, the amount bid by Jennings, and the amount bid by himself at the second sale. When the plaintiff bought at the second sale the auctioneer made the same kind of entry on the notice as he had done when Jennings bid, that is, an entry to the effect that he had sold the land to the plaintiff on the said day for the sum of $1,175.
At the close of the evidence for the plaintiff, the defendant demurred thereto and moved to dismiss, or for judgment as of nonsuit, under the statute. The motion was allowed. Judgment was entered for the defendant and the plaintiff appealed.
We are of the opinion that the judge correctly decided the case. When a sale is made at auction, the auctioneer is the agent both of the (91) vendor and the vendee. It has been said that, until the fall of the hammer, he is the agent of the vendor, but when the property is struck off to the purchaser by the auctioneer he then becomes the agent of the vendee. The vendor employes the auctioneer to make the memorandum of sale, and the buyer, by bidding, sanctions the authority of the officer to do so. He, therefore, has the power to sign the memorandum, so as to bind the vendee to the terms of the sale. I Reed Statute of Frauds, secs. 315 and 316, and cases cited in the notes. The principle is recognized in Mayer v. Adrian,
In Proctor v. Finley,
Dickerson v. Simmons,
As both parties signed the memorandum in this case, the mortgagee having signed the notice which was witnessed by the auctioneer and the defendant having, within the meaning of the statute, signed the memorandum by his agent duly authorized, it is unnecessary to decide another question in regard to what is a sufficient signing of the memorandum. The statute says it must be "signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized." Commenting on this part of the statute, Smith on Contracts, at marg. p. 96, says: "The signature is to be that of the party to be charged; and, therefore, though, as I have pointed out to you, both sides of the agreement must appear in the writing, it is not necessary that it should be *77
signed by both the parties; it is sufficient if the party suing on it is able to produce a writing signed by the party whom he is seeking to charge. And such a writing signed is sufficient to satisfy the 4th section, though it be only a proposal accepted by parol by the party to whom it is made. The person, however, who seeks to enforce the agreement has not the other altogether at his mercy, but must either do, or be ready to do, his own part of the agreement, before he can seek performance on the part of the person who has signed. Davis v. Martin,
But while the memorandum was sufficient within the statute of frauds, the sale to the plaintiff by the defendant and the auctioneer was invalid. If the purchaser at an auction sale is unable or refuses to comply with his bid before the bidders disperse, the property may be sold without a fresh advertisement, or the property may be afterwards sold if it has been newly advertised.
Discussing this subject, it is said in 27 Cyc., at p. 1486, that the bidder is liable for the amount of his bid, which may be recovered in a proper suit against him, or, if he is unable to comply with his bid, the property may be put up for sale a second time. This may be done immediately, if the purchaser's refusal or inability is clearly manifested, and the necessity of advertising a second time or (95) giving new notices may be avoided if the resale is made on the spot and before the bidders disperse, although otherwise there must be a new publication and evidence of the trustee's or mortgagee's continuing authority to make the sale. It is no valid objection to such a resale that the property did not bring as much as at the first sale.
In Barnhardt v. Duncan,
In this case it appears that the second sale was made after the bidders had dispersed and without any new advertisement. The trustee and auctioneer had no power or authority from the mortgagor to release the first bidder and sell to the second bidder for a less price. The mortgagor was vitally interested in this transaction, as if we should hold that the second sale was vaild [valid], he would lose $325. Jenning was (96) bound by his bid, and as we have seen, it could have been enforced against him by a suit in equity, now a civil action.
We hold the second sale, which was made to the plaintiff, to be invalid, for the reasons stated, and as the mortgagee has made a deed to Jennings in accordance with his bid, for the full amount of $1,500 and as the mortgagor has assented to the execution of this deed by receiving the balance of the purchase money, after paying the debts, costs, and expenses, we think Jennings must be declared to be the owner of the land, and the plaintiff is not entitled to recover against the mortgagor, who is the defendant in this action, the difference between his bid and the real value of the land, according to his contention. It can make no difference, so far as he is concerned, whether Jennings acquired title to the land under his bid and the subsequent deed from the mortgagee, for it is sufficient to decide that the plaintiff acquired not right or title by virtue of his bid at the second sale, as the mortgagee had no power or authority to sell to him.
The plaintiff cannot recover upon the ground that the mortgagee assumed to exercise a power to sell which he did not have and that he was thereby misled or deceived to his injury, for the simple reason that he bought with full knowledge of all the facts, and as he is presumed to know the law, he was fixed with notice of the fact that the mortgagee did not have the power to sell under the circumstances, and, therefore, he was in no sense defrauded.
In Leroy v. Jacobosky,
In this case, as we have indicated, the plaintiff had full notice of the situation, and will be held, therefore, to have known all the facts, and it is clear that the mortgagee did not undertake to guarantee a ratification by the mortgagor, so that the essential elements of a warranty as to the authority of the defendant to sell to him is lacking, and he cannot justly claim to have been deceived or defrauded. There is, therefore,
No error.