McWhorter v. McMahan, 10 Paige Ch. 386

McWhorter v. McMahan

10 Paige Ch. 386 | New York Court of Chancery | 1843

The Chancellor.

The allegation in the defendant’s answer that he was always ready and willing to perform the contract on his part, is fully rebutted by the proofs in the case. The complainants having executed and sent to him a deed, on the day mentioned in the contract, together with the bond and mortgage to be executed by him, it was his duty to perform his part of the agreement by returning the bond and mortgage to them, duly executed; as a sufficient demand was made when they were sent to him to be acknowledged before the judge and returned to them by the latter, who was their agent for that purpose. And if there was any objection to the deed itself, or to the description of the premises therein, or if the defendant wished the nominal incumbrance of the mortgage to Eason removed, it was his duty to make the objection, so as to. give them an opportunity to obviate it; which they probably could have done at once. (Winne v. Reynolds, 6 Paige’s Rep. 410.) From the testimony in the case, how*392ever, I think it is wholly improbable that: there was - any material variance between the store and lot contracted to be sold, and the premises as described in the deed. It is true the "contract calls the store fifty-six feet front and rear,, and the deed describes the lot as being nineteen feet wide.. The contract, however, describes the store as extending to the centre of the wall on each of the sides ; and, the deed also describes each of the side lines of the lot as running through the centre of the partition walls between the store on the premises and the stores adjoining the same. There is very little doubt therefore, that the words front and rear, in the contract, were intended to describe the length of the store from front to" rear, instead of the width thereof in front and in rear; although the latter appears to be the more appropriate meaning of the language used -in the agreement. But the description of the visible monuments— the side walls themselves—will control, as being more certain than the specified distance. The deed therefore will include the whole building to the centre of the side walls thereof, be the distance either more or less than the specified number of feet. And a conveyance in the very language of the description in the contract would convey nothing more. As both parties were in the store at the time, and could see the probable width thereof, there was no mistake, as to the subject matter of the contract, which could authorize either to resile from the agreement.

The variance between the written contract, as set out in the bill, and the contract as actually made by the parties, is wholly immaterial, for the language of each means the same thing. The lot in rear of the store was called a lane, because by the recited agreement between John McWhorter and the owners of the adjoining lots, it was to be kept open for that purpose. Hence it is described in the contract as the lot in the rear, or lane •, that is, the lot in the rear of the store which is sometimes called a lane.

The only real question in this case, therefore, is, whether the agreement of the 2d of February, 1839, was subscribed by McWhorter, or his agent duly authorized for that pur*393pose, so as to make it a valid and binding agreement within the provisions of the revised statutes requiring contracts for the sale of lands to be in writing. The former statute of frauds only required such contracts to be signed by the party who was attempted to be charged upon the contract. Hence the question frequently arose whether the purchaser could not be charged upon his contract, although such contract was not signed by the vendors so as to make it legally binding upon them. No such question, however, can arise upon the present statute, which renders the contract for the sale of lands void, unless the contract, or some note or memorandum thereof expressing the consideration, is in writing, and subscribed by the party by whom the sale is to be made. (2 R. S. 135, § 8.) And in the recent case of Townsend v. Hubbard & Orcutt, (4 Hill’s Rep. 351,) the court for the correction of errors decided that the vendees were not liable upon a contract, which they had themselves signed, because it was not properly executed by the vendors, or their agent, so as to make it a valid contract under this provision of the revised statutes. Here the sale was to be made by both the complainants; and it was necessary, therefore, that the agreement should be signed by both of them, either in person or by an agent duly authorized, in order to make it a valid contract of sale, under this provision of the revised statutes. It was not perisonally signed by the complainant McWhorter ; as the signature of the names of McWhorter & Baldwin to the agreement is proved to be in the hand writing of the complainant Baldwin. Was it then signed by Baldwin for McWhorter, as his lawfully authorized agent for that purpose?

It is insisted by the appellant’s counsel, that to constitute a lawfully authorized agent to make a contract for the sale of land he must have a written authority. Such, however, was not the construction which had been put upon the former statute of frauds; and the revised statutes have not changed the law in this respect. The 9th section of the act of February, 1787, for the prevention of frauds, (1 R.L. *394of 1813, p. 78,) required conveyances and leases, which were to transfer an interest in lands in prmenti, to be signed by the party, or by his agent lawfully authorized by writing, in order to render them valid either at law or in equity. And the language of the 10th section was the same in this respect. But in the 11th section, which related to executory contracts for the sale of lands, &c. the words “ by writing” were left out; so that it was only necessary that the agreement should be signed by an agent lawfully authorized. Under this section, and under the corresponding provision in the English statute of frauds, it had long been settled that to make a valid executory contract for the sale of lands, or of an interest therein, it was not necessary that the authority of the agent should be in writing ; but only that the agreement itself should be in writing, and should be signed by him as such agent. (Coles v. Trecothick, 1 Smith’s Rep. 233. Barry v. Lord Barrymore, 1 Sch. & Lef. 29. Clinan v. Cooke, Idem, 22. 1 Sugden on Vend. 186, 10th Lond. ed.)

There is certainly some danger of fraud and perjury in permitting the authority o.f an agent, to contract for the sale of the lands of another, to be established by parol. And the revisers proposed to remedy the supposed defect in the former law, by requiring that the agent who signed such a contract should be authorized by writing; and they reported the 9th section of the title of the revised statutes respecting fraudulent conveyances and contracts, accordingly. But the legislature struck out the words V authorized by writing,” which were contained in that section as it was reported by the revisers, and substituted the words u lawfully authorized,” as contained in the previous statute on the subject. It is only necessary, therefore, to establish the fact, by parol, that the person signing such a contract, as agent for the seller, was lawfully authorized to sign it as such agent. And the supreme court, in the recent case of Lawrence v. Taylor, (5 Hill’s Rep. 107,) consider this as the. proper construction of this section of the revised statutes.

The testimony in this case, as to the authority of Bald*395win to sign the name of McWhorter to the contract, in connection with his own, is such as to leave no doubt on the subject. Both concurred in the making of the contract, and were together when it was signed by one, in the names of both, as well as by the defendant. And both executed the deed, a few days afterwards, for the purpose of carrying into effect the agreement which had thus been made by them. I think the vice chancellor was therefore right in decreeing a specific performance of the agreement; in case the complainants should appear, upon the master’s report, to be able to make a good title to the premises.

The decretal order appealed from must be affirmed with costs. And the proceedings are remitted to the .vice chancellor, with directions to refer the matter to any master in the county of Chautauque, if the particular master named in the decretal order is no longer in office.