Robinson v. . Daughtry

*202 AlleN, J. The deed executed to E. P. Robinson & Co. is valid, and it operated to vest the full equitable title to the land described therein in the members of the partnership as tenants in common, Walker v. Miller, 139 N. C., 448, also reported in 4 A. and E. Anno. Cases, 601, where there is an extensive note. If, then, the title to the land was vested in the members of the firm by the deed executed to R. P. Robinson & Co., has it been divested by the subsequent deed executed by Lowe, one of the partners, and what is the legal effect of the latter instrument? “A contract of partnership is a contract of agency, and it differs from a pure agency only in this, that in a pure agency the agent binds his principal only; in a partnership all the principals or partners are bound, which, of course, includes the actor. On this principle is bottomed the powers of one partner to bind the partnership when he acts within the scope of his powers.” Person v. Carter, 7 N. C., 324. Ordinarily this authority of one partner to bind the others on the ground of agency does not extend to the conveyance of real property, and deeds conveying such property must be executed by all the partners, 30 Cyc., 494; Thompson v. Bowman, 73 U. S., 316; but it is also true that an instrument in form a deed, which has been defectively executed by an agent having authority, may operate as a contract to convey, Rogerson v. Leggett, 145 N. C., 10, and that no seal is necessary in a contract to convey land, Mitchell v. Bridger, 113 N. C., 71, and that ' the authority to make the contract may be shown by parol, Hargrove v. Adcock, 111 N. C., 171; Wellman v. Horn, 157 N. C., 170. Applying these principles to the facts, it follows that the paper-writing executed by the partner, Lowe, in the name of the partnership is valid as a contract to convey, provided there is evidence of authority in Lowe to make the contract. This authority may be express, or implied from the nature of the business conducted by the partnership, and the plaintiff Stowe testified that Lowe had charge of the business of the partnership in Sampson County, and the plaintiff Robinson that it was entirely in the scope of the business to take land and convert it into cash in exchange for patent rights; and when the character of the business is considered, this furnishes evidence of authority in Lowe to make a valid contract of sale binding on all the partners. The author says in Gilmore on Partnership, 292: “In so-called real estate partnerships where land is the commodity dealt in, it would seem that there should be an implied power in each partner to sell it. A distinction should be drawn between the actual conveyance of firm realty and a contract to convey. It might very well be that a partner has power to bind the firm by an agreement to convey partnership land, *203 but has not the power to execute the formal conveyance”; and Bates on Part., sec. 299, is to the same effect. The Court states the same principle in Thompson v. Bowman, 73 U. S., 316, as follows: “There is no doubt that a copartnership may exist in the purchase and sale of real property equally as in any other business. Nor is there any doubt that each member of such copartnership possesses full authority to contract for the sale or other disposition of the entire property; though for technical reasons the legal title vested in all the copartners can only be transferred by their joint act”; and in Chester v. Dickerson, 54 N. Y., 1: “One partner cannot convey the whole title to real estate unless the whole title is vested in him. Van Brunt v. Applegate, 44 N. Y., 544. But he can enter into an executory contract to convey, which a court of equity will enforce. While a contract for the conveyance of land must be in writing, yet an agent to execute the contract may he appointed by parol. Willard on Real Estate, 376. And hence, when the partnership business is to deal in real estate, one partner has ample power, as general agent of the firm, to enter into an executory contract for the sale of real estate”; and in Rovelsky v. Brown, 92 Ala., 522: “If the several partners in a firm engaged in business of buying and selling real estate cannot bind the firm by purchases or sales of such property made in the regular course of business, then they are not capable of exercising the essential rights and powers of general partners, and their association is not really a partnership at all, but a several agency.” We are, therefore, of opinion that there is no error in the intimation of opinion by his Honor. It is not clear that the plaintiffs had the right to appeal, as at least in some aspects of the record the rulings in the Superior Court left open essential matters of fact, Midgett v. Mfg. Co., 140 N. C., 361; Merrick v. Bedford, 141 N. C., 505; Blount v. Blount, 158 N. C., 313. But we have concluded to pass on the questions raised on their merits, and thus save the parties from the expense and trouble of another appeal. Affirmed.