Minor v. Willoughby
Decision Date | 01 January 1859 |
Citation | 3 Minn. 154 |
Parties | BYRON D. MINOR vs. WILLOUGHBY & POWERS. |
Court | Minnesota Supreme Court |
That the bond executed by Olmsted was not binding upon Ewing, citing Tippets v. Walker, 4 Mass. 596; Banorgee v. Hovey, 5 Mass. 24-40; Wells v. Evans, 20 Wend. 258. The bond was not entitled to record, and the record of it was not notice for any purpose. Rev. Stat. Wis. of 1839, p. 179, § 10.
That the judgment is erroneous, because the court did not state its findings of facts and conclusions of law.
Respondents claimed: —
That Chute was the general confidential agent of Ewing, and had sufficient authority to appoint Olmsted to sell the lot.
If there was any want of original authority to execute the bond, yet it was subsequently ratified.
Appellant was not a bona fide purchaser. His deed is dated September 27, 1850. Respondents' purchase was made March 13, 1850, when they went into possession and commenced the erection on the lot of a building, and September 1, 1850, paid the full price.
Their possession was notice to the world of the extent of their interest in the premises.
Appellant was fully advised of respondents' claim, in 1854, and paid no part of the purchase price till after that, and then paid nothing, but merely cancelled a prior indebtedness.
To constitute a bona fide purchaser, for a valuable consideration, without notice, he must be without notice, not only at the execution of the deed, but at the time of the actual payment of the money. Willard Eq. Jur. 256; 2 Story Eq. Jur. § 1502; 10 Paige, 180; 7 Johns. Ch. 67.
M. E. Ames, for appellant.
Brisbin & Bigelow, for respondents.
In March, 1850, one David Olmsted executed and delivered to the respondents a bond for a deed of the lot in question, signed by himself as one of the obligors, and by William G. Ewing by said Olmsted as his attorney in fact, as the other obligor. The bond was conditioned for the execution of a deed to the respondents by the said Ewing (who held the legal title to the lot), upon the payment by the respondents to said Ewing of the sum of three hundred dollars, on or before the first day of September, 1850, that being the price agreed upon for the lot. The complaint alleges that the respondents, immediately after the execution and delivery of this bond, went into possession of the premises described in the bond, and commenced the erection of buildings thereon for business purposes, and have ever since occupied the premises for such purposes, and have expended some three thousand dollars thereon. The three hundred dollars was paid before it fell due, and the obligees thereupon demanded a deed of the lot described in the bond. Ewing refused to execute a deed, claiming that Olmsted had no authority to execute the bond for him, or to sell the property. The first question presented, therefore, is whether any valid title or interest in the lot passed to Willoughby & Powers by virtue of the bond executed by Olmsted.
At the time Mr. Chute wrote this letter, he was a partner of W. G. and G. W. Ewing (the name of the firm being Ewing, Chute & Co.), and was also the general agent of W. G. and G. W. Ewing, having charge of their business in the Northwest. It also appeared that the lot in question was the property of W. G. & G. W. Ewing, in fact, the deed having been taken, at the time of purchase, in the name of W. G. Ewing, for convenience in selling. Mr. Chute testified that he had charge of the business of the Ewings in Minnesota, and bought and sold lands for them here; and that he received a letter from G. W. Ewing, directing him to sell all their property in Minnesota; and that it was in pursuance of those instructions, that he wrote the letter above quoted to Olmsted, constituting him the agent of Ewing to lease and sell real estate. It does not appear that Chute had any properly executed power of attorney to convey real estate in Minnesota, although he had held such authority to convey real estate for the Ewings in other places.
The bond executed by Olmsted was an executory contract for the conveyance of land. Such a contract, to be valid, is required by the statute of frauds to be in writing, but is not required to be under seal. Minn. Stat. 457, § 8. And it is held, that if the contract may be made without deed, the seal shall not prevent its enuring as a simple contract, though the authority be by parol, or merely implied from the relation between principal and agent, as if they be partners. Lawrence v. Taylor, 5 Hill, 113. And in Paley on Agency, note on pages 158-160, it is said that
An agreement by Ewing to sell the lot in question, would have been valid and binding on him by an instrument in writing not under seal. Such an instrument, executed by an agent properly authorized, would be equally binding on the owner, and an authority to give such writing or instrument need not be under seal. Was such authority given to Chute? We think it was. Mr. Chute states in his testimony, that by letter of G. W. Ewing, he was instructed to sell all the real estate of the firm in Minnesota, and that it was in pursuance of those instructions that he appointed Olmsted agent for the sale of these lands. It may be urged that the letter of Ewing to Chute, if it gave any authority, gave authority to sell the lands, and not to contract for the sale, and, having failed to give the legal power actually to convey the lands, from lack of the necessary formality, it failed of its purpose wholly. Such does not seem to be a necessary consequence. The power to sell and convey includes the power to make an executory contract for the sale and conveyance, but the power to do the latter does not necessarily include that to do the former. The testimony stands undisputed, that Ewing had requested Chute, as the agent of the firm, to dispose of their real estate in Minnesota, and that Chute acted in accordance with these instructions in contracting (through Olmsted) to sell this lot to the plaintiffs. The testimony also shows that the lot was purchased by the plaintiffs in good faith, for a fair and adequate consideration, and that they immediately proceeded to make valuable improvements on the property. The equities are all in their favor, and the objection of the defendant wholly technical. It is based on the ground that the owner of the lot had not given the requisite legal authority to execute an instrument of conveyance of the premises, under seal; not that he had given no authority at all to sell, or contract to sell. If force can be given to the authority which Ewing did give, it would, manifestly, be in furtherance of justice to do so. This is evidently the doctrine in the case of Lawrence v. Taylor, above cited, in which, while it is held that a specialty executed by an attorney cannot operate as such in any case unless his power be under seal, yet, even in such case, it does not follow that it shall not operate at all. And in that case it was held, that it might enure as a simple contract, the court also citing, in support of this doctrine, Story on Part. 197; Anderson v. Tompkins, 1 Brock C. C. 462, per Marshall, C. J.; 2 Kent (6th Ed.), 614; Newton v. Bronson, 13 N. Y. 587.
If, however, there be any doubt as to the extent of the original authority given by G. W. Ewing to Chute, and through him to Olmsted, for the sale of the premises in question, we have none as to the subsequent ratification of the contract by Ewing, after the same was made known to him. It is true that he demurred to executing the contract by making a deed for the lot, not on the ground, however, that he disputed the authority of Chute to make the executory contract, but on the ground principally of inadequacy of consideration. The testimony shows that Ewing was in St. Paul subsequent to the making of the contract, and that he then expressed dissatisfaction with the sale of the lot, and that he endeavored to persuade Willoughby & Powers to accept a lease of the premises, but not succeeding, stated to Olmsted (as appears from the testimony of that witness), "that he would give a deed — that the consideration was too small, and he wanted to get the land back again from Willoughby, but if he could not get it back, he would give a deed." Of course he could not get it "back" unless he had parted with...
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