Curry v. Hale

JoHNsoN, Judge,

delivered the opinion of the Court:

The demurrer to the bill was properly overruled as it clearly presented a proper case for the. consideration of the court. The special plea in effect was, that neither the contract, promise, agreement, representation nor assur *874 ance'upon which the suit was brought, nor any memorandum or note thereof, was in writing signed by them, or their or either of their agents. The defendants did not suffer any injury by the rejection of the plea, as they setup substantially the same thing in their answer, and had the full benefit thereof.

We will now proceed to the consideration of the merits of the case. The first question that is presented is, whether it was the duty of the defendants to protect the the land from the sale under the trust deed. It was expressly agreed by Hale, when he made the purchase from Curry of the three hundred and seven acres of land, that $2,000.00 of the purchase-money should be paid in cash, and that the residue should be paid in installments of $2,500.00 each, due in one and two years from date respectively, for which Hale executed his two single bills; and that the deeds of trust upon the property- should be paid out of the proceeds of the first of said deferred payments. The $2,000.00 was paid as agreed, and a deed of special warranty delivered to Hale, made at Hale’s request to the defendant, Pliny Fisk, retaining upon the face thereof a lien for the Syllabus i. purchase-money unpaid. In such cases the question is one of intention depending upon the terms of the contract ; and when it is expressly or impliedly agreed that the incumbrance shall be deducted from the consideration, or paid by the purchaser, the vendor stands in the position of a surety, and is entitled to exoneration at the expense of the land. 2 Leading Cases in Eq. (White & Tudor) 1st part, 282, and cases cited. It was therefore the duty of the said Hale, or those for whom he purchased as agent, if the sale was a binding one, to protect the land from sale under the trust-deeds; and the fact that they did not do so, but permitted it to be sold under said deeds, does not exonerate them from the payment of the purchase-money.

But it is insisted, that Hale was not the agent of the defendants, Bichey and Perdicaris; and if he was, he *875 exceeded his authority, and they are not bound by his acts. Where a person deals with an agent, it is his duty to ascertain the extent of the agency; he deals with him at his own risk; the law presumes him1 to know the limit of the agents power; and if the agent exceeds his authority, the contract will not bind the principal; but will the agent. Brown, Gov., v. Johnson, 12 Smed. & Syllabus 3. M. Ch. 398; Lester v. Kline, 37 Conn. 1. But if the agent exceeds his authority, the act may be ratified by the principal, and it is not necessary that there should be any positive or'direct confirmation. Story Agency, Syllabus 4, §253, and cases cited. Where, with a knowledge of .the facts, the principal acquiesces in the act of the agent, under such circumstances as would make it his duty to repudiate such acts if he would avoid them, such acquiescence is a confirmation of the acts of the agent. It Syllabus 5. is not necessary that such knowledge shall be shown by positive evidence ; it may be deduced or inferred from the facts and circumstances of the case.

Now with these principles before us what are the rights or obligations of the appellants ? The plaintiff has a decree against them, which he desires enforced; they desire that the decree should be reversed, and'a decree rendered in their favor against the plaintiff for the purchase-money they paid.

John P. Hale in his deposition says, that Pliny Fisk took the title for Hotchkiss, Hale and himself, and for Richey and Perdicaris, whom Fisk introduced into the purchase, and that the property was held by him for them, as follows, Richey and Perdicaris each one-third, and Fisk, Hotchkiss and Hale the remaining third ; that at the time the sale was made, it was known that the two trust liens existed against the land, and that it was arranged that the trust liens should be discharged out of the proceeds of the first note; and that the sale under the trusts were postponed several times to await the payment of the note. On cross-es animation Hale says, he had interviews with relation to the purchase after it was *876 consummated, with both Richey and Perdicaris. He testifies, that at the time of the purchase Curry said : “He believed the title to be perfect except one undivided fourth of the coal, and he believed that would go with the land; that he knew of no claimants for it; that Curry showed him an abstract of title prepared by S. A. Miller for Curry; that he could not find the abstract, but thought that it showed no imperfections in the title except the trust deeds, and the fourth undivided coal interest in the land; that before the execution of the deed, Pedicaris and Richey were not informed by him of the trust deeds, or coal interest.

Mr. Miller says, he was present at the sale to Hale, and that Curry peremptorily refused to make a deed of general warranty, and refused to make the sale on such terms.

Pliny Fisk in his deposition says, that in the fall of 1873, Dr. Hale informed him that Curry owned the property; that it was very desirable on account of a recently discovered vein ofcannel coal on it, and the proximity of the land to the railroad, and Brownstown, that Curry’s title to the land was perfectly good and that he could make a good deed for the property for the sum of $7,000.00; $2,000.00 was to be paid in cash on the delivery of the deed; $2,500.00, in one, and $2,500.00 in two years respectively. After this interview with Hale he, Fisk, explained the matter fully to Richey and Per-dicaris, who each agreed to take a third interest in the property provided the title thereto was good, and the premises free from all encumbrance; ■ that he afterwards, saw Dr. Hale, and informed him “that the said Perdica-ris and Richey would each take one-third interest in the Curry property, and each pay one-third of the' purchase-money.” He says the other third was one-ninth his, and a ninth each to Hotchkiss and Hale. He had no interview with Curry himself. In September, 1873, he was in Dr. Hale’s office in Charleston, when Col.. Miller, a lawyer, was there and stated that he had examined the title to the property, and that it was good; witness then *877 paid the $2,000.00 to Dr. Hale, who was to pay it to Curry upon his making to Dr. Hale a good deed for said' property free from all encumbrance for the sum above stated.

A. G. Richey says, Dr. Hale had no authority to act for him in the transaction, other than this, "that some time in the fall of 1873 Mr. Pliny Fisk, who was then a director in the Chesapeake and Ohio Railroad Company,on his return from West Virginia informed him that there Avas a small tract of land owned by Curry, containing something over three hundred acres, in which there were valuable Amins of coal and Avhich Avas situated very near to said railroad which could be purchased for $7,000.00; that Dr. Hale, who had great experience in the purchase of real estate, had examined the title, or had had it examined, and that it was all right, and that the party could make a good deed free from alljencum-brances; and thereupon he agreed to pay one-third of the purchase-money, and was to have one-third interest in the property, and Mr. G. A. Perdicaris, who was a near neighbor of his, agreed to pay one-third of the purchase-money and was to have a one-third interest in the property. He never saAV the original deed or a copy thereof. He further says, that Perdicaris and himself each paid to Fisk one-third of the cash payment of $2,000.00, which they understood he should pay over to the owners of the property upon their executing a good and sufficient deed for the premises, free from all encumbrances. He learned of the liens and imperfections in the title in 1874. To the question : "Did you ever request, or authorize any one for you to request, a postponement of the sale of the property under the trust deeds or either of them?” answered: “I have no recollection of making any such request.” He further stated that Mr. Perdicaris, on account of sickness, was unable to be examined as a Avitness in the cause.

The foregoing is the substantial part of the testimony on the subject of the agency of Dr. Hale in the purchase *878 °f the said property. It shows to my mind conclusively, ’ that all the parties express great confidence in Dr. Hale’s judgment, and that the whole matter was confided to him ; and if there was any doubt about this, it is set at rest by the fact that for two years and a half after the cash payment of $2,000.00 was made no complaint whatever is heard, and not until the demurrer of the appellants is filed on the 9th day of May, 1876, as far as the record discloses, is it known to the plaintiff that they deny that Hale bad the authority to make the contract. As the records of the county of Kanawha were open to them, where the deed to Pliny Fisk for their benefit had been recorded for nearly two years before they made their appearance in the cause, and where the trust liens were recorded, and where an abstract of the title to the land could have been obtained, they must be presumed to have had knowledge of the facts of which they now complain, and must be deemed to have confirmed the act of the agent, Dr. Hale, even if he had exceeded his authority. It would under the circumstances be grossly unjust to the plaintiff, if the appellants could be permitted for years to lie silently by, make no objection to the sale, or the title, and then, when called upon for the purchase-money, deny the authority of the agent who made the purchase for them. If they had promptly repudiated the acts of their agent, the plaintiff might now occupy a very different position; for the property was not sold under the trust deeds until the 31st day of August, 1875, nearly a year after the first note of ¡$2,500.00 was due and payable.'

The charge of fraudulent representations of the plaintiff set up in the answer of the appellants to the bill is wholly unsustained by the evidence.

Symiius7. Itis assigned as error, that the decree directs a sale of the interest of the appellants in sundry tracts of land held by them and others as tenants in common, without ascertaining what such interests are, and without having before the court the parties owning the other interests. It *879 is true, that it appears that the lands are owned by the appellants and others as tenants in common, and it also appears what the interests are, for their deeds are referred to in which their interests are apparent. It was not only unnecessary to have the parties holding the remaining interests before the court, but they would have been improper parties, as no decree could have been made affecting their interest. 1 The interests of the appellants are undivided and as such liable to be sold for their debts, Syllabus 6. and the purchaser at the sale would take their interest as tenants in common with the original grantors in the deed. Freeman on Co-tenancy and Partition, §213 and cases cited

It is also assigned as error, that the decree directs a Syllabus 8. sale without having first ascertained whether there were any liens on the property ; and also because it was not first ascertained whether the rents and profits would not pay the amount of the debt in a reasonable time. Whether in an attachment suit in equity, before selling the real estate subject to the lien of the attachment, it is necessary under any cirsumstances to refer the cause to a commis-sinner to ascertain and report the liens on the said estate and their priorities, we do not in this case decide, because the question does not fairly arise. It is a sufficient answer to this assignment of error, that none of the parties by their pleadings or otherwise asked such a reference; and that no such facts appear upon the record as could have made it the duty of the court on its own motion to direct such a reference. It is not necessary or proper in an attachment suit in equity, to direct an en-quiry whether the rents and profits of the real estate attached will pay the debt within a reasonable time.

For the foregoing reasons the decree of December 18, 1876, and that of the 28th day of May, 1878, must be affirmed with costs and damages according to law.

Judges Green and Haymond Concurred.

Decrees Affirmed.