Lobdell v. Mason

• Court: Mississippi Supreme Court
• Writing for the Court: COOPER, J.
• Citation: Lobdell v. Mason, 71 Miss. 937, 15 So. 44 (Miss. 1894)
• Decision Date: 09 April 1894
• Parties: C. S. LOBDELL ET AL. v. J. W. MASON

15 So. 44

71 Miss. 937

C. S. LOBDELL ET AL. v. J. W. MASON

Supreme Court of Mississippi

April 9, 1894

FROM the circuit court of Bolivar county, HON. R. W. WILLIAMSON Judge.

The case is stated in the opinion.

Affirmed.

Fred Clark, for appellant.

Under § 1292, code 1880, no action is maintainable on a contract for the sale of lands or a lease for more than one year, unless the same is in writing, signed by the party to be bound, or by some person "thereunto lawfully authorized." Section 1180 requires the authority to be in writing and acknowledged or proved.

The decision in Curtis v. Blair, 26 Miss, 309, is not applicable, for when it was made there was no statute requiring the agent's authority to be in writing.

Section 1188, code 1880, declares that the title to land for a longer term than one year shall not pass except by writing. In view of these sections, it was necessary that the authority of Lobdell should be by writing. Any other construction excludes from consideration entirely § 1180.

The judgment should be reversed, and judgment entered here in favor of appellants.

Moore &amp Jones, for appellee.

In Curtis v. Blair, 26 Miss. 309, it was expressly decided that the authority of an agent to make a contract for the sale of land was not required to be in writing. This decision was cited and approved in Baker v. Griffin, 50 Miss. 158.

The statutes referred to by opposite counsel were in force when the last-mentioned case was decided. These statutes merely prescribe a mode of conveyance of land by an agent, without precluding other modes.

OPINION

COOPER, J.

The appellants, who are the heirs at law of Mrs. E. J. Parkinson brought this action of unlawful and forcible entry and detainer against the appellee to recover possession of the lands described in their petition. The case was tried by the judge on an agreed state of facts, and, from a judgment in favor of the defendant, the plaintiffs appealed. From the agreed facts it appears that, in February, 1892, C. S. Lobdell, having verbal, but no written, authority from Mrs. Parkinson, executed to Mr. Mason a lease of the plantation of Mrs. Parkinson, of which the demanded lands were a part, for the year 1892. The concluding clause of the lease is as follows: "It is also agreed that the said J. W. Mason is to build a good plank cabin, with brick chimney, front gallery and shed room, near the north-west corner of the land, and on the north-west side of Brown's bayou, near the pool, and is to have the use of said land for the years 1892, 1893 and 1894."

At the expiration of the year 1892, Mrs. Parkinson being then dead, the appellants notified Mason not to make the improvements on the land, as they would claim that the lease thereof, beyond the first year, was void under the statute of frauds, because Lobdell, the agent of Mrs. Parkinson, was not authorized, in writing, to make the lease. Mason assigned his term to his wife, the appellee, who, notwithstanding the notice by the appellants, proceeded to erect the cabin, whereupon the appellants instituted this action.

Our statute of frauds does not contain the first and third sections of the English acts of 29 Car. II., by which the instruments therein referred to are required to be signed by the parties or by "their agents thereunto, lawfully authorized in writing;" it is framed after the fourth section of the English act, and denies action upon the contracts it enumerates "unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him or her thereunto lawfully authorized." Code 1880, § 1292; Code 1892, § 4225. Among the contracts it enumerates is the making of a lease for a longer term than one year. Under this statute, the appointment of the agent by whom the contract is signed, is not required to be in writing. Curtis v. Blair, 26 Miss. 309.

Counsel for appellant concede that the authority of Lobdell to make the lease would not be required to be in writing by the statute of frauds, but contend that, after the decision in Curtis v. Blair, a new statute was adopted in this state, by reason of which no valid lease for more than one year could be executed by an agent having verbal authority only. The provision appealed to is § 1180, code 1880, and is as follows: "Conveyances of land, or contracts relating thereto, executed by an attorney in fact for his principal, and duly acknowledged or proved, shall have the same force and effect as if executed and acknowledged by the principal, provided such attorney be appointed by some writing duly executed and acknowledged by the principal or proved in the manner conveyances of land are required by law to be executed and acknowledged or proved; and when a conveyance by an attorney is in execution of letters of attorney, it shall pass the interest of the principal, though not formally executed in his name." The original of this section is found in the code of 1857, art. 2, ch. 37, which code was adopted several years after the decision in Curtis v. Blair. By another section of the code it is provided that "no estate of inheritance or freehold, or for a term of more than one year, in lands or tenements, shall be conveyed from one to another, unless the conveyance be declared by writing signed and delivered." Code 1880, § 1188; Code 1892, § 2434.

Shortly stated, the proposition of appellant's counsel is this: By § 1188, code 1880, conveyances in fee of freehold or for a term of more than one year must have been by deed; by § 1292 contracts for the sale of lands, tenements or hereditaments, or the making of a lease thereof for a longer term than one year, were required to be in writing, signed by the party to be charged therewith or by an agent thereunto lawfully authorized; § 1180 declares what shall be necessary for the lawful appointment of an agent to execute for his principal the conveyances required by § 1188 or the contracts required by § 1292.

Upon a cursory reading of the statutes, the position of counsel seems plausible and reasonable, but a careful examination of them shows it to be unsound. Prior to March 2, 1854, there was no law in this state providing, eo nomine, for recording powers of attorney. On that day an act was passed admitting such instruments to record, and making certified copies thereof admissible in evidence. Laws 1854, p. 156. This act, enlarged by the addition of three other articles, became, in the revision and codification of the laws, chapter 37, p. 322, code of 1857. One of the added articles authorized married women, jointly with their husbands, to appoint attorneys in fact, by whom they could make conveyances of their estates. Another provided for the appointment, by one interested in the administration of an estate of an attorney in fact to represent him in such administration. The other, with some changes subsequently made, became § 1180 of the code of 1880. This section has been brought forward from the code of 1857 into those of 1871, 1880 and 1892, and in each of these codes the statute of frauds, as it was written when the case of Curtis v. Blair was decided, has been re-enacted. The effect now sought to be given to this section has never been suggested in any decision, and there is nothing in the history of legislation tending to show that it has received that construction in the legislative department.

If the construction contended for by appellants be correct, no conveyance of...