Johnson v. Hurley

• Decision Date: 08 May 1893
• Citation: 22 S.W. 492,115 Mo. 513
• Parties: JOHNSON et al. v. HURLEY.
• Court: Missouri Supreme Court

22 S.W. 492

115 Mo. 513

JOHNSON et al. v. HURLEY.

Supreme Court of Missouri, Division No. 1.

May 8, 1893.

SPECIFIC PERFORMANCE — STATUTE OF FRAUDS — IMPLIED AUTHORITY OF AGENT.

1. Where a person in good faith makes valuable and lasting improvements on land, of which he is in possession under a forged deed delivered to him by an agent authorized to contract for the sale of the land, and who had orally agreed to sell the land to such person, there is such a part performance of the contract of sale as in an action for specific performance will take it out of the statute of frauds.

2. Plaintiffs appointed an agent to receive offers for the purchase of land owned by them, and to submit the offers to plaintiffs, and, on approval of the terms, to deliver deeds and receive the purchase money; also to lease the land, collect the rent, and pay taxes. The agent was a son of one plaintiff and a nephew of the other, and for over 10 years acted for them in answering all inquiries, selling land, receiving purchase money, and delivering deeds. Plaintiffs during this time never visited the property. Held, that authority of the agent to contract for sales of the land was implied from the conduct of plaintiffs.

Appeal from circuit court, Ralls county; Thomas H. Bacon, Judge.

Action by John M. Johnson and another against John M. Hurley to recover the possession of lands. Judgment was rendered for defendant, and plaintiffs appeal, Affirmed.

Harrison & Mahan, for appellants. Geo. W. Whitecotton and Jas. P. Wood, for respondent.

MACFARLANE, J.

The suit is ejectment to recover possession of the N. W. ¼, section 5, township 53, range 7, in Ralls county. The answer set up an equitable defense, to the effect that defendant had purchased the land from the duly-authorized agent of the plaintiffs, had received from said agent deeds purporting to be duly executed and acknowledged by plaintiffs, and purporting to convey to him said lands; that he had paid to said agent the entire purchase price for the land, to wit, $1,650, its fair value, and had been put in possession under his said purchase; that he had, in good faith, fenced said land, and erected thereon a dwelling house and other valuable and permanent buildings and improvements, — and prayed specific performance. The reply denied the new matter of the answer. The cause was tried as a suit in equity for specific performance of a contract for the conveyance of land, and a decree entered for defendant according to the prayer of the answer, and plaintiffs appealed. The evidence showed that about the year 1836 one Peter Johnson, a resident of Morristown, N. J., entered about 2,500 acres of land situate in Ralls county, Mo.; that said Peter Johnson died in the year 1854, leaving plaintiffs, John M. and Martha J. Johnson, and one Phoebe Johnson, since deceased, without issue, his only heirs at law. About the year 1868 plaintiffs appointed one Joseph R. Winchell, of Hannibal, Mo., as their agent. Soon after this, plaintiff John M. moved to the state of Illinois, the two sisters remaining in New Jersey. Winchell not proving a satisfactory agent, about the year 1878 plaintiffs sent out to Missouri Finley A. Johnson, a son of plaintiff John M. Johnson, then a lawyer and judge of Newark, N. J., to settle with Winchell. A settlement was made, Winchell discharged, and the said Finley A. appointed in his stead, without, as plaintiffs claim, authority to make sales of the land. On the 16th of April, 1881, the said Finley A. Johnson, assuming to act as the agents of plaintiffs and their sister Phoebe, sold to defendant the E. ½ of said N. W. ¼ for the sum of $800, and afterwards, on January 10, 1882, he sold him the W. ½ of said ¼ for the sum of $850. That defendant paid the purchase money to the said Finley A. Johnson at the respective dates of sale, and received from him deeds purporting to be signed and acknowledged by plaintiffs and said Phoebe. Under these purchases, defendant went into possession of the land, which was then unimproved, fenced it, built a dwelling house and other buildings thereon, and reduced it to cultivation. The evidence further showed that the deeds and the acknowledgments were forged by the said Finley A., and that plaintiffs never knew that contracts or deeds had been made, or that money had been paid their agent, until 1884, after he had absconded. The question is whether these sales made by their agent were binding on plaintiffs.

1. The evidence leaves no doubt that plaintiffs' agent made the contracts with defendant for the sale of the land, assuming to act for them; that he received the purchase money, delivered a deed, to which their names were signed, and to which an acknowledgment certified in due form by the said agent as notary public was attached and that under said transaction, and relying on it, defendant, in good faith, went into the possession and made valuable and lasting improvements. Under these circumstances, if said agent was authorized to make the sale, it would be the grossest injustice and fraud on defendant to deny him the benefit of the contract for the reason that it was not in writing, as required by the statute of frauds. To prevent such injustice courts of equity have uniformly held that such part performance relieves the contract of the infirmity created by the statute, and specific performance will not be denied. Emmel v. Hayes, 102 Mo. 193, 14 S. W. Rep. 209; Bowles v. Wathan, 54 Mo. 264.

2. The question then is whether Finley A. Johnson had authority from plaintiffs to make a sale of these lands. It may be stated, in the first place, as a general rule, that an agent can only act within the circumscribed authority given him by his principal, and one who deals...