delivered the opinion of the court.
As there is nothing in the record indicating the point on which the decision of the cause was made to turn in the court below, we will consider those objections which have been urged аgainst it by the appellant.
It is insisted that the sale was not invalid by the statute of frauds, first, because the written notice of it, published before it took place, was a sufficient note оr memorandum in writing to satisfy the requirements of the statute. In support of this position, the case of Hobby v. Finch & Knapp (Kirby, 14) is referred to. The judgment in that case was not unanimous. The casо was an early one, and yet stands alone. The statute says “ the agreement, or some note or memorandum thereof, shall be in writing.” Now we do not see how a written notice of a sale can be said to be an agreement, or a note or memo
Secondly, it is maintained that the auctioneer being the agent of both parties, bis memorandum of the sale was sufficient to take it out of tbe statutе ; that tbe law does not require this memorandum to be made at tbe moment of tbe sale, but that it may be made at a reasonable time thereafter. There is no doubt that at sales by auction, tbe auctioneer is regarded as tbe agent of both parties, and his memorandum of tbe sale, made at tbe time, is sufficient within tbe meaning of tbe statute. In tbe case before us, tbe memorandum of tbe sale was not made by tbe agent who conducted it until some month or more after tbe sale bad taken place, and that too after this cоntroversy bad arisen. It is obvious that if a memorandum, made under such circumstances, satisfies the statute, then all sales at auction may be taken out of its provisions. Would it not be much safer to tbe parties to have tbe agent introduced as a witness, and sworn to tbe terms of tbe agreement, than that be should sign a memorandum of it some month or more after it bad been made ? It is clear that tbe memorandum must be made within such time as shows it to have been a part of tbe transaction. Kent says, tbe writing tbe highest bidder’s name in tbe memorandum of tbe salе by the auctioneer, immediately on receiving bis bid and knocking down tbe hammer, is a sufficient signing within tbe statute of frauds, so as to bind tbe purchaser. Tbe auctioneer is tbe agent to make tbe sale. On what principle can his authority be prolonged for a month after tbe sale ? If it can be extended for a month, why not for an indefinite length of time ? Why not bring him into court and let him make tbе memorandum there and swear to its truth ? Tbe law will not let him prove tbe agreement by bis oath. Will then this written statement of tbe terms of tbe contract be sufficient ? This involves tbe law in the absurdity of taking tbe unsworn statement of a witness for tbe sake of avoiding perjury. As tbe agent only bad authority to make tbe sale, tbe
In the third place, it is contended that the delivery of the premises sold into the possession of the plaintiff was sufficient tо take the case out of the operation of the statute. In the case of Bean v. Valle, (
Independently of the foregoing considerations, there are obstacles in the way of granting the relief sought, which can not be surmounted. Bullock, the grantor in the deed of trust, has an interest in this controversy. He was not made a party as hе should have been. He is entitled to the surplus after payment of the debt secured by the trust. He required, by the terms of the deed creating the trust, that the land should be sold for cash in hand. The plaintiff claiming under that deed must be presumed to be cognizant of its contents. With what face can he ask a court of equity' to enforce a contract, made in violation of the express terms of the deed under which he claims ? So far from the land being sold for cash in hand, the arrangement for the payment of the purchase money has resulted in this рrotracted litigation, to the prejudice of the residuary cestui que trust in the deed. Although the plaintiff has failed to give him an opportunity of asserting his rights, by omitting to make him a party to the suit, yet his interest can not be overlooked. The law will not compel his trustees to
There is another consideration arising in this case which can not be overlooked. Davis, -one оf the trustees, is a party to this suit, and he insists on the defence growing out of the circumstance of his non- concurrence in the acts done by his co-trustee. He insists that he neither concurred in the arrangement by which cash in hand was not to be received for the land sold, nor did he give his consent that the plaintiff might enter into the possession of the premises. It is a general rule that trustees have equal power, interest and authority with respect to the trust estate. They, can not, therefore, act separately; but they must all join in any salе, lease or other disposition of the trust property, and also in receipt of money payable to them in respect of their office. (Hill on Trustees, 305.) It is true that the deed gave the trustees authority to act separately or jointly in making the sale. But it seems they elected to act jointly, and accordingly gave notice of the sale in their joint names ; and having so made their election, it was not competent for one of them afterwards to deny the authority of his co-trustee, and act alone. There may be cases in which the concurrence of a co-trustee might be presumed, but there is no room for it here in the face of the answer of Davis. This being a bill for specific execution of a contract, the reasons addressed to the consideration of the court by the defendant Davis are sufficient to induce a denial of the relief sought.
the judgment will be affirmed.