Tillery v. Land.

This action was brought by the plaintiffs to compel the (538) specific performance by the defendants of a contract in the following words: "This contract, made this 27 October, 1902, by and between E. M. Land for himself and as agent for the other owners, of the first part, and L. F. Tillery, of the second part, shows that the party of the first part agrees to sell to the party of the second part the tract of land in Nash County, near the town of Rocky Mount, adjoining the lands of L. F. Tillery, J. R. Green and others, known as the `Taylor and Land tract,' containing about 577 acres, for which the party of the second part agrees to pay the sum of $6,500 or pro rata according to a new survey to be made at the expense of the first part; said purchase money to be paid one-half cash on the execution and delivery of complete title to the premises, and balance to be paid in three years from delivery of the deed, with 6 per cent interest from date of delivery." (Signed and sealed by E. M. Land, agent, and L. F. Tillery). After the issues were submitted, it was agreed by the parties that the jury should be discharged and that his Honor should try the case both as to the facts and the law. His Honor found as follows: "1. That the contract referred to was executed by L. F. Tillery and E. M. Land, agent. 2. That at the time of the execution of the contract E. M. Land was authorized to contract to sell his own undivided interest in said land, which I find to be one-sixth of same. 3. That he had authority to contract to sell John H. Taylor's interest in the land, which is admitted to be one-tenth, at the rate of $6,500 for the whole tract, which was to be net to him, subject only to his pro rata part of the charge of executing and registering a conveyance, which by consent of parties is fixed at $20, making his part thereof $2, and that said Land had no authority to contract to sell the interests of the other defendants. 4. That at the time of the execution of the contract Land contracted as agent of Taylor (539) to sell the entire tract for $6,500, subject only to a charge against his share of the cost of executing and registering the conveyance, *Page 392 and that for himself alone he (Land) contracted to have a new survey made of the land and to pay the cost thereof, and that the price should be determined by the result of the new survey, and should be in the same proportion, in respect to price named, as the quantity discovered by the new survey should bear to 577 acres. 5. That Tillery, on 28 October, 1902, assigned to his co-plaintiff, W. L. Groom, one-half of all the rights and interests vesting in him by virtue of the said contract of 27 October, 1902." Upon the foregoing findings the Court adjudged that John H. Taylor recover of the plaintiff, L. F. Tillery, $650 upon the execution by him, the said Taylor, of a deed conveying his interest in the land to the plaintiff, Tillery and Groom, in fee, and that if said Taylor refuse to receive said money and to execute said deed on or before the first day of September next, then the said plaintiffs may pay the said sum into the Clerk's office, and upon its payment therein the Clerk of this Court, who is hereby appointed a commissioner for that purpose, shall execute a deed to the plaintiffs conveying to them the said Taylor's one-tenth interest in the land, and shall have the same proved and registered, the expense of which shall be paid out of said fund. (The plaintiffs waived the time unelapsed for the payment of one-half of the price under the contract). It is further adjudged that Land is entitled to recover of the plaintiff, Tillery, $1,083.33, to be reduced if the new survey hereinafter ordered shall discover that the number of acres is less than 577, by the proportion of said difference, and if the new survey shall discover that there is a greater quantity than 577 acres this recovery shall be increased accordingly, and this shall apply to the share of said Taylor as well as his own — Land alone being responsible for this part of the contract. It is further adjudged that John C. Beall be appointed to survey the land and make three plots of the (540) survey, one to be filed with the Clerk, one to be delivered to the plaintiff, and one to the defendant Land, and that the surveyor make report to this Court — the survey to be made in the next sixty days. As to all the other defendants, except Land and Taylor, this action stands dismissed. And further, that the defendants Land and Taylor, as to the costs incurred up to the filing of this judgment and the enrolling of the same, pay the same in equal proportion; and upon the payment of the amount ascertained to be due Land, as provided above, after deducting any costs against him, he shall execute a deed to the plaintiffs conveying his share of the land to them in fee. After his Honor had announced his finding of the facts the plaintiffs moved the Court for a decree of specific performance *Page 393 against all the defendants, and upon that motion being overruled they then asked for a decree against E. M. Land, Edward Perry and wife, and E. M. Land, guardian of Annie Land, and John H. Taylor. That motion was refused except as to E. M. Land and John H. Taylor. The plaintiffs and the defendants, Land and Taylor, excepted to the judgment and appealed. At the time of the contract two of the defendants, Annie Land and James Taylor, were infants, and Lucy Perry was a married woman, and there was no evidence that either one of the defendants, except Taylor, ever authorized the defendant Land to contract to sell his or her interest in the land described in the contract. His Honor therefore properly refused to have a decree entered against the infants or Mrs. Perry, or against either one of the adult defendants who had not authorized the defendant Land to contract to sell their interests in the land. However, in the oral argument here, as well as in the brief of the plaintiffs, it was contended that upon the face of the contract, as a matter of legal construction, Land had obligated himself personally to see to it that a proper deed should be executed by himself and the defendants for the entire (541) interest and estate in the land, and that therefore specific performance should be decreed against him, he not having shown on the trial that he could not procure the other defendants to join him in such conveyance. It will be seen, though, that the defendant Land not only did not claim the whole of the property, but distinctly declared that there were others who owned interests in the land, and that he was acting for them as their agent and signed the contract as their agent. So this is not a contract such as where one had made an agreement to convey land generally without disclosing the ownership and where the Court might grant a decreein personam against the vendor for specific performance, although he did not own the land at the time of the contract. The plaintiffs here knew that Land had only a fractional interest in the property and that he was acting as agent for the other owners; and therefore as a matter of law the plaintiffs could not have specific performance against Land for the interests of his principals. The plaintiffs could only have specific performance against such of the defendants as authorized the defendant Land to contract for them, and as we have seen there was no evidence tending to show that either one of them, except Taylor, gave him such authority. If the infant defendants and Mrs. Perry had authorized the defendant Land to convey their interests in the property, specific performance could not be enforced as to them. The contracts of infants to sell their real estate may be ratified after they become of *Page 394 full age, and the courts might, and would in proper cases, compel them to specifically perform their contracts. But as long as they remain infants they could not be made to execute such contracts. As to married women, there is but one way in which their real estate or any interest therein can be conveyed under an executory contract to convey the same, and (542) that is under the provisions and authority of section 1256 of The Code. No Error. DEFENDANT E. M. LAND'S APPEAL. It was argued here that the contract was an indivisible one and had reference to the tract of land as a whole and not to the separate share of either one of the tenants in common, and therefore that no decree could be entered ordering specific performance as to the separate share of Taylor. There is nothing in the case going to show that it was the purpose or desire on the part of the defendant, Taylor, or Land, that the tract of land should be sold as a whole. In fact, Taylor's letter to his agent (Land) showed that he was only concerned in the sale of his interest and that of his brothers and sisters. While the plaintiffs in the case would not be compelled to take a part of the land if they could not get title to the whole, they could nevertheless compel either party to the contract to convey his interest in the premises. In Fry on Specific Performances, at section 1222, it is said: "Although as a general rule where the vendor has not substantially the whole interest he has contracted to sell, he, as we have seen, cannot enforce the contract against the purchaser, yet the purchaser can insist on having all that the vendor can convey, with a compensation for the difference." The same principle has been decided in our own Court in Swepson v. Johnston, 84 N.C. 449. There was no error in any of the rulings of his Honor, and the judgment is Affirmed. DOUGLAS, J., dissents from the above opinion in Land's appeal. TAYLOR'S APPEAL.