Blacknall v. Parish, 59 N.C. 70, 6 Jones Eq. 70 (1860)

Dec. 1860 · Supreme Court of North Carolina

59 N.C. 70, 6 Jones Eq. 70

RICHARD BLACKNALL against WILLIAMSON PARISH.

Where a paper-writing- was signed and sealed by the owner of land, with blanks as to the name of the bargainee and left with an agent, who was authorised, by parol, to fill up the blanks with the name of the purchaser and the price, it was held that, though such an instrument could not operate as a deed, yet, it was a contract for the sale of land, signed, for the person to be charged therewith, by his lawfully authorised agent, and could be specifically enforced.

A memorandum or note of a contract may be signed by one in the name of his principal, so as to comply with the requisitions of the statute of frauds, without being thereunto authorised in writing.

Cause removed from the Court of Equity of Orange county.,

This was a bill filed for the specific performance of a contract, by which the defendant bound himself to cpnvey to the plaintiff a tract of land, described by its metes and bounds, and lying in Orange county. The allegations in the bill (which are sustained by the evidence filed) are, that the defendant, being about to remove from the county of Orange, where he lived, to the western part of the State, authorised one Harrison Parker to sell, for him, the land in question, and to enable him to do so, he prepared a deed, describing the premises, and purporting to convey the same in fee, but leaving therein blanks as to the name of the bargainee and the price, with instructions, when he might make sale of the land, to fill up the blanks in the deed, and deliver it to the purchaser ; that afterwards, Parker made a sale to the plaintiff, at a reasonable price, and, accordingly, filled up the deed in the requisite particulars, with the name of the plaintiff and with the price ; both supposing the instrument was thus made good as a deed; that Blacknall gave his bond for the money to the defendant’s agent, who used the same in the purchase of a slave for the defendant, and it was, subsequently, paid to defendant’s assignee.

The prayer of the bill is for a specific performance of the contract, evidenced by the imperfect deed, and to stay, by an injunction, the proceedings of an action of ejectment, which the defendant had brought against the plaintiff, and which was then pending in the Superior Court of Orange county.

The defendant answered, denying the authority of Parker to sell to Blaeknall, and alleging that he had special objections to plaintiff’s having the land, which are stated; and that the deed in question, was prepared for the purpose of consummating a sale to one Hopkins, with whom he was in treaty when he left the county, and that his agent had no authority to deliver it to any one else. He relied on the statute of frauds as a bar to the plaintiff’s equity.

On the coming in of the answers, the injunction, which had issued in vacation, was dissolved, and the bill continued over as an original bill. ■ Proofs were taken, which sustained the plaintiff’s allegations and disproved those of the defendant. The cause being set for hearing, was transmitted to this Court by consent.

Norwood, for the plaintiff.

Graham, for the defendant.

Battle, J.

Upon examination of the testimony taken in this cause, we are entirely satisfied that the land, mentioned in the pleadings, was contracted to be sold to the plaintiff by an authorised agent of the defendant; that the authority, under which the agent acted, was by parol, and that the contract was entered into by the agent’s filling up certain blanks in an instrument, which the defendant had signed and sealed, and left with the agent to be, by him, made complete by filling up such blanks and delivering it as the deed of the defendant to the person who should become the purchaser. We are further satisfied, that what was intended to be a sale, was made fairly, and for a price, which, at the time, was not inadequate, and further, that the price was, subsequently, received by the defendant.

It has been properly admitted by the plaintiff, that the instrument, which vras delivered to him by the agent of the defendant, as a deed for the land in question, could not operate as such, because, it was not complete when it was signed and sealed by the defendant. In the case of Davenport v. Sleight, 2 Dev. and Bat. Rep. 381, and again in Graham v. Holt, 3 Ire. Rep. 300, it was held that an instrument, signed and seal* ed in blank, and handed to an agent, only verbally authoris-ed to fill up the blank, and deliver it, was not the bond of the principal, and that after declarations of the principal, approving of the delivery by the agent, made in the absence of the instrument, and without any act in relation to it, would not amount to an adoption and ratification of the delivery.

The case before us is one of a deed for land, instead of a bond for the payment of money, but the principle is the same. The instrument must be complete before it can be delivered by an agent, acting under a mere parol authority, as the act ■and deed of his principal.

The plaintiff, not being able to set up a legal title under the instrument in question, insists, nevertheless, that it is evidence of a -contract, the specific performance of which, he has a right to have enforced in a court of equity. The defendant objects to this, and relies, in support of his objection, upon the statute of frauds, which declares “ that all contracts to sell or convey any lands, &c., shall be void and of no effect, unless such contract, &c., or some memorandum or note thereof, shall be put in writing, signed by the party to be charged therewith, or by some other person, by him, thereunto lawfully authorised, &c.Eevised Code, chap. 50, sec. 11. The question then, is ; fa'st, whether the contract, for the sale of the land, was put in writing ; and secondly, was it signed by the party to be charged therewith, or by any person, by him, thereto lawfully authorised. We think that there can be no doubt that the instrument, which, for the reasons above stated, could not operate as a deed, may be regarded as a contract put in writing. It is in truth a written contract more than ordinarily complete, both in form and substance, and the only question, admitting of any sort of doubt, is, whether it has been signed by the defendant, or by any legally authorised agent. We are of opinion that it cannot be considered as a contract with the plaintiff, signed by the defendant himself, independently of any act of his agent, because, when the defendant put his name and seal to it, no such contract had been made. But we think that, in legal effect, it was signed for him, and in his name, by his properly constituted agent. The failure of the agent to make the instrument operate as the deed of his principal, did not prevent him from causing it to operate as the simple contract of his principal; for nothing is more common than for an agent to fill up blanks in a promissory note signed by his principal, and no body has ever doubted that the principal was bound by it. That the authority of the agent, in all such cases, may, under the statute of frauds, be by parol, is well settled ; 1 Parsons on Cont. 42; 2 Kent’s Com. 612; Coles v. Trecothic, 9 Ves. Jun., 250.

The plaintiff is entitled to a decree for a specific performance, and also to recover back all the costs which he has been compelled to pay in the action of ejectment at law, and also the costs which he has had to pay upon the dissolution of the injunction in the Court of Equity below.; to ascertain which an account may be ordered.

Pee Cukiam, Decree accordingly.