Morris v. . Basnight

Hoke, J. The contract to convey is sufficient in form, and, having been executed by the general manager of the company, apparently within the course and scope of his powers, and in the line of the com *302 pany’s business, is prima facie binding on the company. Bank v. Oil Mill, 157 N. C., 302; Clowe v. Imperial Pine Product Co., 114 N. C., 304. And, if it were otherwise, the company having acquired the plaintiff’s interest in his father’s land and the timber thereon under and by virtue of the act of the secretary and general manager, are concluded on this question. They will not be allowed to accept and hold the benefits of the agreement and repudiate the authority of the agent by whom it was made. McCracken v. R. R., 168 N. C., 62-67; Sprunt v. May, 156 N. C., 388; Watson, Trustee, v. Mfg. Co., 147 N. C., 469; 10 Cyc., 1073. The objection of defendant, therefore, that no proper authority had been shown for making the contract, must be disallowed. Recovery is resisted further by defendant on the ground that "W. E. Blades, a third person and not a party, is the owner of one-half interest in the property. It is true the facts show that, at the time the property was acquired in pursuance of the agreement, said Blades joined Herbert C. Turner in the transaction, and that the deed was made to the two, but it also appears that the entire purchase price was paid by Turner, then president of the company, and evidently with the company’s funds. Not only is it found by the verdict that said Turner bought the land and took title to himself in fraud of plaintiff’s rights, but in recognition of the company’s interest prior to the institution of the suit, and for a nominal consideration of $10, he executed a quit-claim deed, conveying to the company all his right, title and interest in the property. From these facts, therefore, it would seem that W. B. Blades has no such interest in the property as would prevent a conveyance of the entire title by a deed of defendant company. Kuhn v. Epstein et al., 219 Ill., 154. Without decision on this question, however, it is the recognized principle in actions of this character that, in a divisible contract of the kind presented here, partial performance may be insisted on by the vendee, and assuredly so when it is made to appear that he is ready and willing to perform the full obligations of the contract on his own part. Timber Co. v. Wilson, 151 N. C., 154-157; Kones v. Corell, 180 Mass., 206; 25 R. C. L., Title, Specific Performance, sec. 51. Again, it is contended that specific performance may not be awarded in the present instance because it appears that the defendant company has conveyed its entire interest to C. H. Turner, and is no longer able to convey any part of the title to the property. It is undoubtedly a correct position that equity will not do a vain thing and decree the making of a title when the defendant has no longer any title to convey, but the principle only applies when it is clearly established that the title has been passed to a bona fide purchaser, free from any and all equities arising to the plaintiff by reason of his claim, and the suit brought by *303 him to enforce it and is not available to defendant on the facts of this record. Not only is Charles H. Turner the president and substantial owner of the company and its assets, and presumably cognizant of plaintiff’s rights under his contract, but he bought, pending this suit brought by plaintiff to enforce these rights. True he purchased and took his deed before complaint filed, and the doctrine of lis pendens as it ordinarily prevails only effects third persons who may take title after the nature of the claim and the property affected are pointed out with reasonable precision by complaint filed o.r notice given pursuant to the statutory regulations, but this limitation only prevails as it may affect the purchaser with constructive notice. Our statute on the subject, Rev., 462, only purports to deal with constructive notice, and its effect on subsequent purchasers, but where one buys from a litigant with full notice or knowledge of the suit, and of its nature and purpose, and the specific property to be affected, he is concluded or his purchase will be held ineffective and fraudulent as -to-decree rendered in the cause and the rights thereby established. Griswold v. Muller, 15 Barbour, 520; Corwin v. Bensley, 43 Cal., 253-262; Wide v. Dawson, 48 West Va., 469-475; 25 Cyc., 1452; Bennett on Lis Pendens, 319. One careful consideration, we find no reason for interfering with the disposition made of the case, and the judgment in plaintiff’s favor is Affirmed.