Hopper v. McAllum

• Decision Date: 19 February 1906
• Citation: 87 Miss. 441,40 So. 2
• Court: Mississippi Supreme Court
• Parties: GRACE D. HOPPER ET AL. v. ELIZABETH F. MCALLUM

40 So. 2

87 Miss. 441

GRACE D. HOPPER ET AL. v. ELIZABETH F. MCALLUM

Supreme Court of Mississippi

February 19, 1906

FROM the chancery court of Kemper county, HON. JAMES F. MCCOOL Chancellor.

Mrs McAllum, the appellee, was complainant in the court below Mrs. Hopper and her husband and others, appellants, were defendants there.

Two married men, McAllum and Jenkins, both having parol authority from their respective wives, but not being "thereunto duly authorized" in writing, executed for and on behalf of their respective wives a written agreement to exchange lands upon the determination of a particular lawsuit in a designated way.

Before the end of the suit one of the wives, Mrs. Jenkins, sold her land to Mrs. Hopper, who had actual notice of the written agreement above mentioned. The suit was finally terminated in the designated way, and Mrs. McAllum demanded that the exchange of lands be consummated. This being refused, she began this suit to compel specific performance. From a decree in complainant's favor Mrs. Hopper and her husband appealed to the supreme court.

Affirmed.

T. W. Brame, for appellants.

Unquestionably the husband has not the authority to dispose of his wife's property unless he is lawfully authorized so to do; and in order to be lawfully authorized to convey real estate, the authority to the husband must be in writing signed by the wife.

The husband has no more authority to dispose of the wife's real estate under verbal authority than any other person would have to whom verbal authority was given.

Code 1892, §§ 2434, 4225, sets out how such a contract shall be made. Under this statute, the first section requires it to be by deed, signed and delivered; the second section requires that such a contract shall be in writing and signed by the parties to be charged therewith, or by an agent lawfully authorized. To be lawfully authorized to execute a conveyance, the parties must have authority as is designated by sec. 194 of the code, which says that "in all such cases the parties must have been appointed by some writing duly executed by the principal."

George H. Ethridge, for appellee.

The husband, or agent, cannot execute a conveyance unless his appointment is in writing; but he can make a binding contract, good in equity, to convey. Lobdell v Mason, 71 Miss. 937 (S.C., 15 So. 44); Curtis v Blair, 26 Miss. 309; Edmondson v. Orr, 12 Smed. & M., 541; McCaleb v. Pradat, ...