Gwathney v. Cason

• Decision Date: 31 January 1876
• Court: North Carolina Supreme Court
• Parties: GWATHNEY, DEY & CO. v. C. W. CASON.

21 Am.Rep. 484

74 N.C. 5

GWATHNEY, DEY & CO.

v.C. W. CASON.

Supreme Court of North Carolina.

January Term, 1876.

In order to remove a contract for the sale of lands from the operation of the statute of frauds, there must be a writing signed by the party to be charged therewith, or by his agent thereto lawfully authorized, containing expressly or by implication all the materials of the contract.

Therefore, where B bid off a tract of land at an auction sale, and the auctioneer immediately went to his office, some two hundred yards distant, and in the absence of B began to prepare a deed, and had reached the habendum, when B came in and informed him that he would not comply with his bid; in an action brought by A, the owner of the land, sold at auction, to recover the amount of B's bid; It was held, That the requirements of the statute had not been complied with, and the plaintiff was not entitled to recover.

(The cases of Cherry v. Long Phil. 466; Christian v. Nixon, 11 Ired. 1; Hardy v. McKesson, 7 Jones 569, cited and approved.)

CIVIL ACTION, tried before Eure, J, at Fall Term, 1875, of the Superior Court of CHOWAN county.

In 1872, one Burton conveyed to the plaintiffs a house and lot in Edenton, N. C., to secure certain debts, and having failed to pay the same, the trustees, on the 14th day of March, 1874, after due notice, &c., offered said lot for sale. On that day their agent, one Petteway, offered the interest of Burton in the lot for sale at public auction, and proclaimed to the bystanders the terms of the sale, the defendant being present. After several bids the interest of Burton was bid off and knocked down to the defendant for the sum of four hundred and eighty-six dollars.

There was no memorandum made at the time of the bidding, but immediately after the property was knocked down, the attorney of the plaintiff, Octavius Coke, Esq., went to his office, two hundred yards distant, and began to draw a deed therefor in the absence of the defendant, and when he had got to the haben??, he was informed that the defendant declined to comply with his bid, because he had been deceived by the plaintiff as to the title to the property. The deed however was drawn and tendered to the defendant on the day of sale, and the purchase money demanded, which he declined to pay.

This action was brought to recover the sum of $486, the purchase money for the lot.

Upon the trial his Honor intimated that the plaintiffs could not recover, because the agreement to purchase was void under the statute of frauds, whereupon the plaintiff submitted to a non suit and appealed.

Walter O'ark, for the appellant .

Gilliam & Pruden, contra .

RODMAN, J.

The only question presented in this case is, was the contract by defendant to purchase land, “or some note or memorandum thereof, put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized,” as is required by the statute of frauds. Bat. Rev. chap. 50, sec. 10.

The contract was not signed by the defendant personally. It is properly admitted however, that upon a purchase of land at auction, a signature of the defendant's name by the auctioneer, in the presence of the defendant and with his consent, to any writing containing the terms of the sale, and stating him as the purchaser, will suffice. Cherry v. Long, Phil. 466.

Whether the auctioneer is authorized to sign the name of a purchaser not in his presence, and at an indefinite time after his bid has been accepted by the fall of the hammer, was discussed by the counsel. There are decided authorities that the signature must be strictly contemporaneous with the sale. Mews v. Carr, 1 Hurl. and Nor. 486, (S. C. 38, E. L. & E. R.) Browne on Statute of Frauds, sec. 352 a, 353. Smith & Arnold, 5 Mason, (C. C.) 419. Walker v. Herring, 21. Grat. 678; Horton v. McCarty. 53 Maine, 394.

But, without expressing any opinion on this point, we assume that the effect of what Coke wrote, is not impaired by the fact that it was written out of the presence of the defendant, and some short time after the bid of the defendant had been accepted.

The case states that immediately after the sale, Coke (the auctioneer) went to his office, about two hundred yards distant from the place of the sale, and began to draw a deed for the land to the defendant, and had proceeded as far as the habendum, when he was informed that defendant declined to comply with his bid for certain reasons, which he assigned. The deed was however drawn and tendered to defendant on the day of the sale, when he refused to accept it. The case states that a copy of the deed is annexed, but in fact, it is not. It was, however, conceded by counsel, that the deed was in the usual form. We may assume, therefore, that it professed to be made between the plaintiffs and the defendant as parties of the first and second parts respectively; that it recited the conveyance from Burton to plaintiffs, the sale, the bid of $486 by defendant and its acceptance by the auctioneer; the payment of the consideration, and that plaintiffs conveyed the land to the defendant.

Two objections are made to this instrument as a compliance with the statute:

1. Before the sale the auctioneer announced orally its terms. But it does not appear that the terms, which it may be supposed should state the identity of the land, and either expressly or impliedly the estate of the vendor, as in fee or otherwise, whether the sale was for cash, with or without warranty, &c., had ever been...