after stating the facts: It is accepted doctrine tbat a binding contract to convey land, when there has been no fraud or mistake or undue influence or oppression, will be specifically enforced. Rudisill v. Whitener, 146 N. C., 403; Boles v. Caudle, 133 N. C., 528; Whitted v. Fuquay, 127 N. C., 68. This last decision being to the effect that mere inadequacy of price, without more, will not as a rule interrupt or prevent the application of the principle. It is also well recognized witb us tbat in order to make a valid contract concerning land, under the statute of frauds, it is not required tbat there should be a signing by the owner or principal, but that a signature by an agent “thereto lawfully authorized” is sufficient. Phillips v. Hooker, 62 N. C., 193. And this position may obtain under some circumstances, though the agent be acting for an undisclosed principal. Nicholson v. Dover, 145 N. C., 18. These contracts, too, coming within the express terms of our registration laws, if otherwise binding and valid, the one first registered will confer the superior- right. Revisal, sec. 980.
It will be noted that tbe defendants T. T. and J. B. Adams claim tbe land in controversy under tbe Stewarts by an instrument registered on 25 May, and tbe contract of plaintiff, signed by T. B. Sbepberd (“Exhibit B”), having been registered prior *69to that under which defendants claim, to wit, on 14. May, if said Shepherd was an agent “thereto legally authorized,” the plaintiff, on the face of the papers, would have the better claim. In this aspect of the case the rights of the parties will depend chiefly on the proper construction of the instrument under and by virtue of which T. B.- Shepherd acted (“Exhibit A”), this instrument having been likewise registered prior to defendants’ contract. On behalf of defendants it is earnestly argued that this instrument (“Exhibit A”) only conferred upon T. B. Shepherd the usual power of an ordinary real-estate broker, and that the authority of such an agent is restricted, as a rule, to bringing the parties together or finding a purchaser ready and able to pay the price, and the authorities cited in the learned brief of defendants’ counsel are apt in support of this position, notably Kramer v. Blair, 88 Va., 456; Morris v. Ruddy, 20 N. J. Eq., 236; Johnson v. Land Co., 111 Ga., 491; Clark and Skyles on Agency, sec. 751. But we do not think that this instrument (“Exhibit A”) can be so restricted. There is high authority to the effect that the term -“negotiate” itself imports authority to enter into and make a- binding agreement. Palmer v. Ferry, 72 Mass., 420. And while this may not be true in every instance or in a general proposition, in this case, as in the authority cited, when taken in connection with the purposes and nature of the instrument and with the other terms of expressions contained therein, we are of opinion that the power given to negotiate a sale of these lands clearly conferred and was intended to confer on T. B. Shepherd the power to make a contract that would bind the parties. A perusal of the entire instrument gives clear indication that such was the purpose. He was authorized to “negotiate for the sale of the Stewart lands at the price of $5 per acre,” the authority was restricted to a period of thirty days, and the owners bound themselves to “execute good conveyances to such purchaser as the parties may produce on the payment of the price.” Indeed, there was no occasion to execute a paper at all unless this effect was to be given it; and while this of itself would not be controlling, it adds force to the interpretation we have given it.
*70DEPENDANT HENRY STEwART’s APPEAL.
Appeal and Error — Interlocutory Orders — Power of Trial Court— Motion to Set Aside Judgment — Newly Discovered Evidence.
All questions incident to and necessarily involved in an appeal from an order continuing a restraining order to tlie hearing are carried by the appeal to the Supreme Court, and as to such there is thereafter no power in the trial judge to entertain a motion to set aside the judgment for newly discovered evidence.
"While we make no question of the correctness of the general proposition insisted on by defendants, we are of opinion that this instrument confers much larger powers than those ordinarily possessed by real-estate brokers, and authorized the agent, as stated, to make a binding contract to convey the property. The .plaintiff, then, holding.a contract for the property, signed by an agent thereto duly authorized, and first registered, on the face of the papers, has a prima facie right to the relief which he seeks, and the court correctly adjudged that the restraining order be continued to the hearing. True, there are allegations and evidence, on-the part of the defendants tending to impeach the plaintiff’s claim by reason of conspiracy and fraud, but these are questions to be referred to the jury for decision. They are denied by plaintiff, and on the facts presented it is proper to apply to them the rule laid down in Tise v. Whitaker, 144 N. C., 507, “that if the evidence raises serious question as to the existence ■ of facts’ which make for plaintiff’s right, and sufficient to establish it, a preliminary restraining order will be continued to the hearing.”
There is no error, and the judgment below is
Affirmed.
After the appeal of T. .T. and J. B. Adams was perfected in this case, being from a judgment continuing a restraining order to the hearing, and after same was docketed in this Court, Henry Stewart, another one of defendants, moved before his Honor R. B. Peebles, J., riding the courts of the Sixteenth District, to set aside the restraining order on account of newly discovered evidence, etc. The judge denied the motion, *71bolding tbat the cause as to the questions involved in the restraining order was no longer before the Superior Court and tbat be bad no power to comply witb the defendant’s motion. Tbe defendant Stewart excepted and appealed.
There is no error. While the Court has held tbat an appeal from an interlocutory order leaves the action for all other purposes in the court below, the decision is also to the effect that the disposition of the interlocutory order and all questions incident to and necessarily involved in the ruling thereon are carried by the appeal to the appellate court, and the judge below therefore bad no power to entertain or act upon appellant’s motion. Green v. Griffin, 95 N. C., 50.
The judgment denying defendant’s application is
Affirmed.