#### *Yerby v. Grigsby.

April, 1838,

Richmond.

Real Estate — Contract of Sale — Agent Acting under Parol Authority — Effect.*—A person owning lands may by parol authorize another to make a contract for the sale thereof; and if a contract be made under such authority, the owner of the lands may be charged by virtue of the contract, provided there be a memorandum thereof in writing, signed by the person authorized to make it.

Same — Same—Signing by Agent.† — The signing by the agent of his own name is sufficient. The statute does not make it indispensable that he should sign the name of the party to be charged therewith.

Same — Same—Authority of Agent flaking Contract to Receive Purchase Money.‡ — When the owner of lands authorizes another to make a contract for the sale thereof, the authority of the agent to receive so much of the purchase money as is to be paid in hand, is a necessary incident to the power to sell.

*143Chancery Practice — Decree between Codefendants § — Case at Bar. — Case in which, upon the state oí the pleading's and proofs between the plaintiff and defendants, it was not deemed proper to decree in favour of one defendant against another; and in which the court would not delay the cause, to have the account between the codefendants adjusted before a commissioner.

On the 8th of September 1830, Charles Green made a deed to William G. Yerby, conveying, for the consideration of 225 dollars, a tract of land containing seventeen and five elevenths acres, more or less, devised to him by his father, and adjoining the land of Yerby. Soon afterwards, a bill in equity was filed against Charles Green and Yerby by Nathaniel Grigsby, which alleged that Charles had authorized his brother John to sell the same land; that John made a contract with the complainant on the 30th of August 1830, whereby he agreed to sell him, for the sum of 425 dollars, of which 250 dollars was then paid, two lots of land, one of which belonged to himself, and the other was the land that Charles had authorized John to sell; that a memorandum in writing was made of the contract, which was signed by John Green as well as by Grigsby ; and that both Charles Green and Yerby had knowledge of *this contract at the time of the sale and conveyance to the latter. The bill prayed a decree directing a conveyance to the plaintiff.

The answers of the defendants did not deny that they had heard of the contract of sale to the complainant, before the conveyance from Charles Green to Yerby ; but both defendants denied that John Green was authorized to make the contract, and Yerby relied on the statute of frauds, and insisted that, under the statute, the agreement entered into by John Green was not binding.

The memorandum of the agreement was as follows: “Article of agreement between John Green of the one part, and Nathaniel Grigsby of the other part, witnesseth, the said John Green hath this day sold unto Nathaniel Grigsby two lots of land, containing about seventeen acres each, for the sum of four hundred and twenty five dollars, two hundred and fifty in hand paid, whereof the said Green acknowledges the receipt, the balance to be paid the first of November next. One of the above mentioned lots is Charles Green’s property, brother of said John, being his part of his father’s land, and said to be No. 5, — the other lot being John Green’s own part of his father’s land, and said to be No. 8, — for both of which the said John Green doth bind himself, his heirs &c. to make the said N. Grigsby a good and sufficient deed on or before the first day of November next. Witness our hands and seals, this 30th day of August .1830.

John Green [L,. S.]

Nathaniel Grigsby [T. S.J

Depositions were taken on both sides. In the opinion as well of the court below as of this court, the evidence established that John Green was authorized by Charles to make such a contract as was made with the ^complainant, and that Yerby knew the contract had been made at the time that he purchased. The circuit court of Fauquier, affirming this contract in all things, decreed that Yerby should, by good and sufficient deed, release to Charles Green all right, title and interest that he had in or to the land by virtue of his purchase from Charles, and that Charles Green, upon the plaintiff’s paying or tendering to him the sum of 175 dollars, should, at the costs of the plaintiff, by good and sufficient deed, convey the land to the plaintiff with special warranty. The defendants were further adjudged to pay the plaintiff his costs. From this decree, on the petition of Yerby, an appeal was allowed.

The cause was argued by Harrison for the appellant, and by Morson for the appellee,

upon the questions made by the pleadings, and upon the following objections taken by Harrison to the decree : 1. that if it be proper to direct the appellant to convey back to Charles Green, the decree ought to go still farther, and direct Charles Green to pay back to the appellant the money received from him ; and 2. that admitting Charles Green had authorized John to sell, yet he had giveu him no authority to receive payment, and the payment to John could only be valid tc the amount of his half of the purchase money, so that, instead of 175 dollars, the sum mentioned in the decree, the appellee should be decreed to pay 212 dollars 50 cents.

*

Real Estate — Contract of Sale — Agent Acting under Parol Authority. — A person owning land may by parol authorize another to make a contract for the sale thereof; and if a contract be made under such authority, the owner of the land may be charged by virtue of the contract, provided there be a memorandum thereof in writing signed by the person authorized to make it. Conaway v. Sweeney, 24 W. Va. 649, citing the principal case.

And in Kennedy v. Ehlen, 31 *W.*Va. 558, 8 S. E. Rep. 408, it is said: “The West Virginia statute of frauds reguires the memorandum of the purchase of realty in writing to be signed by the agent to bind. But the agent may have had verbal authority. The English statute, on the contrary, provided that ‘the agent shall be thereunto lawfully authorized in writing.’ This was designedly omitted from our statute. See Conaway v. Sweeney, 24 W. Va. 643; Brown v. Brown, 77 Va. 619; *Yerby v.*Grigsby, 9 *Leigh*387; Johnson v. Somers, 1 Humph. 268; Doughaday v. Crowell, 11N. J. Eg. 201; Shamburger v. Kennedy, 1 Dev. 1.” To the point that the owner of lands may by parol authorize another to make a contract for the sale thereof, the principal case is also cited in Davis v. Gordon, 87 Va. 580, 13 S. E. Rep. 35. See further, monographic *note*on “Fraud, Statute of” appended to Beale v. Digges, 6 Gratt. 582; mono-graphic wots on “Agencies” appended to Silliman v. Fredericksburg, etc., R. Co., 27 Gratt. 119.

Same — Sale—Agent—Authority of. — Where an agent is authorized to make a sale of land he has authority to execute such writing, or enter into such written agreement as may be necessary: for the authority to sell implies an authority to do everything necessary to complete the sale and make it binding. Smith v. Tate, 82 Va. 665, citing principal case.

†

Same — Contract of Sale — Signing by Agent. — The principal case wás cited in Conaway v. Sweeney, 24 W. Va. 649, for the proposition laid down in the second headnote.

On this subject, see the principal case also cited in Creigh v. Boggs, 19 W. Va. 251.

‡

Same — Same—Authority of Agent Making Contract to Receive Purchase Honey. — In Mann v. Robinson, 19 W. Va. 56, Green, J., speaking for the court, said: “In the case of *Yerby v.*Grigsby, 9 *Leigh*387, a decree was rendered, which impliedly affirmed, that an agent, who had been appointed by a verbal authority to sell land, had under the circumstances appearing in that case authority to receive the cash payment. The court says not one word on this subject; and this inference is to be drawn only from the decree. The reporter too fails to state, what the circumstances or evidence was; in stating the law he merely says: ‘In the opinion of the court below as of this court the evidence established, that John Green was authorized by Charles to make such a contract as was made with the complainant.’ The contract which was made was a sale of two lots for $425.00, of which $250.00 was to be paid and, as the agreement states, was paid in cash to John Green. So far as I can see, there was no authority from anything appearing in this case to justify the reporter in stating in the syllabus of this case, that so broad a proposition was held in it, as that ‘when the owner of lands authorized another to make a contract for the sale thereof, the authority of the agent to receive so much of the purchase-money, as is to be paid in hand, is a necessary incident to the power to sell.’ Nothing of the sort is said by the court; and no such broad proposition can possibly be inferred from the statement of the case or the decree entered. But be this as it may, there is certainly nothing in this or in any other case, which I have seen, that gives any countenance to the idea, that a simple parol authority to sell land or, what is the same thing, to make a contract of sale would impliedly authorize the agent making the sale to receive the deferred payments of the purchase-money. Such implication *143would be entirely unnecessary In order for the agent to execute the authority conferred on him; and on every correct principle it could not be made. In such case it is clear, that no authority to the agent to collect any deferred instalments of the purchase-money can be inferred.”

§

 Chancery Practice — Decree between Codefendants. — On this subject, see cases and notes cited in *foot-note*to Blair v. Thompson, 11 Gratt. 442; mono-graphic *note*on "Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.

PARKER, J.

If this were a case of the first impression, and we had now, in the absence of authority, to decide upon the true meaning of the statute of frauds in relation to contracts for the sale of lands, I should be much inclined to say, that a specific execution of this contract ought not to be decreed. But our legislature has copied the provisions of the english statute of 29 Charles 2, ch. 3, almost verbatim, and our courts *have generally adopted the construction given by that statute in Westminster Hall. This is perhaps the safest course, particularly when we recollect that at the several revisáis the statute of frauds has been re-enacted, with a full knowledge of the interpretation given to its words, in the courts of that country from which we borrowed them.

It has been there repeatedly settled, that an agent authorized by parol to sign a contract for lands, is thereunto lawfully authorized, within the provisions of the statute. The authority to sell implies an authority to do every thing necessary to complete the sale, and make it binding on the principal. It is on this principle that an auctioneer empowered to sell, has always been held to be the agent of the vendor empowered to sign. In *144no one of the cases has it ever been required, that an express authority to sign should be superadded to the authority to sell, although the authority to sign is certainly required by the statute. It has, in all of them, been taken for granted that an agent authorized to sell lands, is empowered to do every act necessary to complete the contract. As the statute declares that no agreement for the sale of lands shall be binding, unless it is in writing, and signed by the party to be charged therewith, or some other person thereunto (that is, to the signing) lawfully authorized, it could not be presumed that he who authorizes another to sell his lands, meant to deprive him of the power to render that sale effectual and binding on the vendor. If the agent sells, and does not sign a note or memorandum in writing, the vendor has the same locus poenitentioe as if he himself verbally agrees to sell; for he may revoke the authority of the agent at any time before the agreement is executed according to the statute. So an agent to purchase must have authority to bind the purchaser by signing the agreement, although his authority may be revoked before the contract is reduced to writing and signed.

*These propositions I take to be clearly established by all the cases. The signing required by the statute must be such as to have the effect of giving authenticity to the instrument, and be so intended ; but it does not seem to be necessary that the principal’s name should any where appear. The statute is complied with, if the contract for the sale of the principal’s land be in writing, and signed by his agent, with a view of authentication, and having the effect. No other construction can possibly be placed on the cases of Kemeys v. Proctor, 3 Ves. & Beam. 57 ; Coles v. Trecothick, 9 Ves. 234, and White v. Proctor, 4 Taunt. 209. In the case at bar, the authority to sell is clearly proved; the intention by John to sell the land of Charles Green is expressed in terms; and the agent signs his name at the foot of the instrument, and with a view to authentication.

Further, after the contract was signed, Charles Green was told by Chapman S. Green that his agent had sold the land to Grigsby, and Charles said he was satisfied, and glad he had sold it. Here was a ratification of John Green’s act, before he conveyed to Yerby, and this would bind him, under the authority of the case of Maclean v. Dunn, 4 Bingh. 722.

Of this sale to Grigsby, it is proved that Yerby had express notice before he purchased or contracted to purchase from Charles Green.

Under these circumstances, I feel bound by the weight of authority to affirm the decree executing the contract of the 30th of August 1830, between John Green the agent of Charles and N. Grigsby, with the variation suggested by the president.

As to a decree between the defendants, that Charles Green refund the purchase money said to have been received by him from Yerby, it is sufficient to say, that no such matter was put in issue by. the pleadings in the case, and there is no satisfactory evidence of the fact of such payment to-be found in the record. The receipt ^copied at the foot of the deed is not authenticated, and is suspicious on its face, for it is dated the 17th of September 1830, and promises that Charles Green should make a deed to Yerby when called on, although the deed had already been made (if we may judge by its date) on the 8th of September preceding. This may be accounted for; but the paper is not proved, and there is no other evidence of the payment to C. Green by Yerby than what is to-be found in the deposition of Joseph Parner, in an answer to a question having no reference to such payment. He is asked, at what time Charles Green said he intended to sell his land to Yerby ? and he answers, “It was a few minutes before I saw mr. Yerby pay the money to Charles Green. I supposed it to be for the land.” It is evident that this loose answer to an incidental question would not justify a decree for a specific sum, if it were otherwise proper in a case like this.

Upon the whole, I concur in the decree to-be indicated by the president.

The other judges concurred in the opinion of PARKER, J.

The decree of the court of appeals was as follows :

“The court is of opinion that there is no error in the decree, except so far as it requires a release from the appellant to Charles Green, instead of decreeing a reconveyance by the appellant to the said Charles Green, with warranty only against himself and all claiming under him: therefore it is decreed and ordered that the said decree, so far as the same is above declared to be erroneous, be reversed and annulled, and that the residue thereof be affirmed; and also that the appellant do pay unto the appellee, as the party substantially prevailing, his costs by him about his defence in this behalf expended. And it is ordered that the cause be remanded to the circuit superiour court, to be further proceeded in according to the foregoing opinion and decree.”