Whitley v. James

Lamar, J.

(After stating the foregoing facts.) 1. The petition alleges that the unauthorized credit sale was made by the *523 agent in 1889that the deed was recorded in the same year; and that the defendant corporations had been in possession from that date until April, 1903, when the present suit was filed, a period of fourteen years. If the original purchaser knew, or was charged with notice, that the agent was exceeding his authority in making a sale on credit instead of for cash, this would put the conveyance where it could be treated as void at the option of the principal. Civil Code, § 3021. Compare Loveless v. Fowler, 79 Ga. 135; Lumpkin v. Wilson, 5 Heisk. 555.

2. If on the other hand the sale is attacked because the agent of the vendor was also president or agent of the purchaser, the effect of the dual agency would authorize the principal to repudiate the transaction. Civil Code, §3010; Red Cypress Lumber Co. v. Perry, 118 Ga. 876; Moore v. Carey, 116 Ga. 28; Story on Agency (8th ed.), § 211.

3. But whether the attack is because of the dual agency or of a violation of the instructions, the sale was not absolutely void so as to be incapable of ratification. The agent actually had the power to sell. There was at least an attempted execution of the power, and the principal could waive the violation of instructions, or the results of the inconsistent positions. The ratification, whether soon or late, was the equivalent of an original command, and cured any defect in the execution of the power. The ratification must, of course, be with knowledge of the material facts; nor would the principal be required to repudiate the act of his agent immediately upon the discovery that there had been anything which rendered the sale voidable. But if, after knowledge of what the agent had done, the principal made no objection for an unreasonable time, a ratification would result by operation of law. What is a period long -enough to bring about such a result would usually be a question for the jury, depending upon the peculiar circumstances of each case. But, in proceeding to recover the land and set aside the deed, the pleadings of the principal may themselves allege enough to show a ratification results as matter of law. In the analogous case of voidable sale to himself by an administrator, it has been held that failure to repudiate for seven years will raise the presumption that the owner acquiesces in the irregular and voidable sale. Advantage can be taken of such lapse of time by a demurrer. Civil Code, §3775; Griffin v. Stephens, 119 Ga. 139, and- cit. If there be *524 •a good and sufficient explanation as to why the principal did not know of the transaction, or had been unable to discover it, or if there be an excuse for delay in bringing the suit, these facts would have to be specially averred in order to prevent the defendant from taking advantage of the acquiescence implied by non-action for a long lapse of time. Whether, therefore, the statute of limitations be treated as a bar to the remedy, or raising a presumption of payment, the demurrer was properly sustained. The purchaser took possession in 1889. This was itself some notice, and when followed by continued possession under a deed recorded for fourteen years, with nothing to explain why the principal did not know, or could not learn by the exercise of ordinary care, of What had been done, the case was within and not without the rule. The period was long enough to raise the presumption of •acquiescence in the act of the agent. Such acquiescence validated the deed. The validation conveyed the title completely to the purchaser. The claim for purchase-money is barred, there being no averment of a written or sealed promise to pay the purchase-price. Hayes v. Callaway, 58 Ga. 288 (2).

These conclusions make it unnecessary to consider the effect of the recitals in the transfer or conveyance to Whitley. They •are strengthened, however, by a consideration of the recital therein as to the “land sold by James.” This itself goes far to indicate a ratification of the sale but with a transfer of the principal’s claim for what would be due on an accounting. But, while the •question was argu'ed, the record does not present any question as toíwhether, under Civil Code, §3079, this claim could be assigned ; for James did not except to the judgment retaining him as a party defendant, and that dismissing the Corporations was proper. Judgment affirmed.

All the Justices concur.