Morgan v. Vollers

• Decision Date: 30 June 1877
• Citation: 77 N.C. 83
• Court: North Carolina Supreme Court
• Parties: MAYER & MORGAN and others v. ADRIAN & VOLLERS and others.

77 N.C. 83

MAYER & MORGAN and others

v.ADRIAN & VOLLERS and others.

Supreme Court of North Carolina.

June Term, 1877.

CIVIL

ACTION for Specific Performance tried at Spring Term, 1877, of NEW HANOVER Superior Court, before Seymour, J.

The plaintiffs are Mayer & Morgan and Feist Mayer.

The defendants are Adrian & Vollers and The Bank of New Hanover. It was alleged in the complaint that on the 13th of October, 1871, Feist Mayer bought of one Charles R. Mayer a certain lot in the City of Wilmington for a valuable consideration, upon which said lot there were two prior mortgages executed respectively to H. A. London for $14,400 and to Richard Dosher for $2000. On the 7th of March, 1872, Feist Mayer executed a mortgage on the same lot to defendant Bank for $2000 with power of sale?? and on the 23d of February, 1874, he executed another mortgage on the same lot to the defendants, Adrian & Vollers, for $2,917.86 and expressed on its face that there were three prior mortgages, viz: to London, Dosher and the Bank. On the 25th of February, 1874, Feist Mayer executed another mortgage on the same lot to Mayer & Morgan for $4000. The Bank advertised and sold the property under its mortgage, and Adrian & Vollers bought at $14.600 upon the terms announced by M. Cronly, (of the firm of Cronly & Morris, auctioneers) who was the authorized agent of the Bank to make the sale. It was further alleged that Adrian & Vollers purchased the interest of Feist Mayer with notice of the prior mortgages and took possession of the premises. The plaintiffs notified Isaac B. Grainger, the President of said Bank, that unless he would agree to become a party plaintiff in an action to compel Adrian & Vollers to comply with the terms of purchase, he would be made a party defendant. No reply was made by Grainger to the letter communicating the intention of the plaintiffs to make the Bank a party. And it was further alleged that the Bank was the trustee of plaintiffs and had failed to inform them whether said purchasers had complied with the contract or terms of purchase.

Thereupon the plaintiffs demanded judgment; 1 that said purchasers perform the said contract of purchase according to the terms thereof; (2) that the Bank account for the proceeds of said sale; and (3) for an account to ascertain the amounts due respectively to the Bank, Adrian & Vollers and Mayer & Morgan.

The defendants Adrian & Vollers denied that only the interest of Feist Mayer in said property was sold as aforesaid, and averred that the Bank sold the property absolutely, and not merely the interest of Mayer, and that their bid was a full and fair price for the same clear of all incumbrances; that the amount due and unpaid on the London and Dosher mortgages was about $9840, and that it would have been unreasonable to suppose that they bought the property subject to such heavy liens and agreed to pay a sum which is its full value without incumbrances; and that they had no notice of the prior mortgages and cannot be held responsible beyond the amount of their bid. They admit that they have received rents for one of the stores, and say that Feist Mayor leased the other store to them in trust to apply the rents to debts due them, and secured by the mortgage mentioned in the complaint. They have not complied with said terms for the reason that soon after the sale they discovered that the Bank could not on its part comply with the same by making them a clear title, and have considered themselves released from all obligations in respect thereto.

The defendant Bank, in the material part of its answer, says, that it was its purpose and design to convey to the purchaser or purchasers at said sale, only such an interest in the property mentioned as it could legally convey by virtue of the power contained in the said mortgage to this defendant; that Adrian & Vollers understood they bought the property absolutely and would obtain a clear title upon payment of said prior incumbrances which were to be satisfied out of the amount bid by them, and that they have made no payment to this defendant on account of said purchase either in cash or otherwise.

The terms of sale and description of the property are set out in the opinion of the Court. Upon issues submitted the following facts were found.

Findings of the Jury:

1. Adrian & Vollers bought the property, mentioned in the complaint and sold by the auctioneer on the 9th of September, 1875, free from all incumbrances.

2. The jury unanimously believe that they bid for the property at the time of the sale under the idea that it was sold out and out, clear of incumbrances

3. They were led to that understanding by the auctioneer while conducting the sale and changing the terms of the sale.

4. The price bid was a fair price for the premises, clear of incumbrances.

The plaintiffs' counsel then moved for judgment non obstante veredicto, which His Honor overruled, and rendered judgment in favor of the defendants and dismissed the action. Appeal by plaintiffs.

Mr. E. G. Haywood, for plaintiffs .

Messrs. George Davis and W. N. H. Smith, for defendants Adrian & Vollers .

Messrs. Wright & Stedman, for defendant, Bank of New Hanover .

BYNUM, J.

Before the plaintiffs can recover in an action for specific performance they must establish that the contract declared on, or some note or memorandum thereof was put in writing and signed by the party to be charged thereunto, or by some other person by him thereto duly authorized within the statute of frauds. It is admitted that the contract itself was not reduced to writing, but it is alleged that a “memorandum” of the contract of purchase was reduced to writing at the time of sale and signed by the defendants, Adrian & Vollers, through their agent, the auctioneer, who cried the sale. This is denied by them and they rely on the statute of frauds. Bat. Rev. ch. 50, § 10. It is therefore necessary to inquire whether this “memorandum” of the contract was such as is required by the statute to bind the defendants.

There were five mortgages at the same time, upon the same lot, the Bank of New Hanover holding the third. The Bank under a power of sale in its mortgage undertook to sell the lot for the payment of its debt, and to that end duly advertised the sale giving a sufficient description of the property, stating also the time, place and terms which were cash. Of this the defendants had notice and attended the sale.

At the time of sale the auctioneer first read the printed advertisement before alluded to and then he read the terms of sale as written in his auction book which were as follows; “The purchaser pays for all papers and $6000 cash, the balance in 6, 12 and 18 months, with 8 per cent interest, the purchaser to have possession on the 1st day of October, 1875, and his notes to draw interest from that time.” It does not appear that the “printed advertisement” was pasted in the auction book with the “terms of sale” there written, or was in any way attached to or physically connected with the written terms of sale; and they in no way refer the one to the other on their face.

Adrian & Vollers bid off the property at the sum of $14, 600. Morris, the auction-partner of Cronly, who cried the sale, then and there, in the presence of Vollers who was announced as the purchaser, immediately made in his auction book the following entry;

“

Sale at the Court House, Sept. 9th, 1875.”

“MAYER PROPERTY.”

+-----------------------------------------------------------------------------+
                ¦       ¦34 ft. on Market St. 58 ft. on alley and 132 back. Line on   ¦       ¦
                ¦Adrian ¦Shrier Bros. Lease until Oct. 1, 1876. $6000 cash. Bal. 6, 12¦       ¦
                ¦&      ¦and 18 months at 8 per cent. Possession Oct. 1, 1875. Notes  ¦$14,600¦
                ¦Vollers¦bear interest from date. Purchaser to pay for all papers by  ¦       ¦
                ¦       ¦the 15th inst.”                                              ¦       ¦
                +-----------------------------------------------------------------------------+
                

The “memorandum” of the contract is set forth verbatim because upon its construction the plaintiffs' right of action depends. For it will be observed that this agreement cannot be helped out by a reference either to the printed ““advertisement” or the “terms of sale;” and that, for the reason that they are not attached or connected together, or by mutual reference connected so as to make one whole, from which the contract is to be ascertained. The agreement must adequately express the intent and obligation of the parties. Parol evidence cannot be received to supply any thing which is wanting in the writing, to make it the agreement on which the parties rely. It may be of one or many pieces of paper, provided the several pieces are so connected physically or by internal reference that there can be no uncertainty as to their meaning and effect when taken together. But this connection cannot be shown by extrinsic evidence. “If there is an agreement on one paper and something additional on another, and a signature on another paper, that is not a written and signed agreement, unless these several parts require by their own statement the union of the others; for if they may be read apart, or in other connections, evidence is not admissible to prove that they were actually intended to be read together.” 3 Pars. on Contracts, 17. “But if it be necessary to adduce parol evidence in order to connect a signed paper with others unsigned, by reason of the absence of any internal evidence in the contents of the signed paper to show a reference to, or connection with, the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain so as to satisfy the statute.” Benjamin on Sales, 160-1.

These general principles are well settled by the authorities cited in the learned brief of Mr. Davis. 1 Sugden on Vend. and Pur. 200; 2 Schouler on Pers. Prop. 519.

The signed memorandum not having been attached to the printed advertisement...