Gault Lumber Co. v. Pyles

Opinion of the court by Burford, C. J.: Upon the admitted facts in the pleadings, the plaintiffs were entitled to judgment in their favor, unless the defendant established such a valid contract of purchase and sale as a court of equity would award a specific performance of. The theory-of the plaintiff in error is that Pyles gave the agent written authority to sell the lot in question, and that the agent made an oral sale to the Gault Lumber. Company; that it paid part of the purchase money and went into possession and made lasting and valuable improvements on the lot, and tendered the balance of purchase money and demanded. a deed of conveyance. This theory, if established, would, in equity, entitle the defendant to a specific performance of the contract. But we think the proof fails of establishing the theory. In the first place, Pyles was not the sole owner and had no authority to sell the lot; he could at best only sell his undivided interest. The infant owners could neither contract in writing or orally to sell their interest, nor could they' authorize an agent or guardian to sell. The purchaser was bound to know this as a matter of law. Nor could Pyles, as the guardian of the infant owners, make any contract of sale that would be *448 legal until he had first procured an order of sale from the probate court, and then any such agreement must have been subject to the approval of such court. The district court had no authority to enforce the contract of Pyles to sell the real estate of the infant heirs, even had he made such an agreement, and for this reason alone the court was justified in directing a verdict for the plaintiffs. Nor do -we think there was shown such a written authority of the agent to sell as will take the case out of the statute of frauds. An authority of an agent to sell real estate, in order to bind the owner by executory contract, must be specific and certain as to terms and description. Ordinarily, when property is placed in the hands of an agent to sell, the authority conferred is only held to be the authority to find a purchaser at a given price and submit the same to the owner, and not an authority to sell and bind the owner. The authority shown by the evidence does not take this case out of the general rule, and in the absence of more specific and definite authority to the agent to sell the real estate and enter into a contract of sale to bind the owners, the court committed no error in directing a verdict. There is a further reason why the defendant should not have prevailed upon the proof made. . If the agent had authority to sell the real estate, it was for the sum of $400 cash. The defendant never made such a contract with the agent as the authority of the agent would warrant. He had no authority to sell for $50 cash and the balance when the defendant should be satisfied with the title. Nor do we think the defendant showed such equity as would entitle it to a specific performance of the contract. It never went into possession of the lot or expended any money.or labor upon it in the way of improvements until after the Pyles deed had been refused, the defect in the title discovered, and the refusal of Pyles to carry out the contract was made known to it. The company was not misled or deceived to its detriment, but went onto the lot with its eyes open and the obstacles all apparent. The posses *449 sion and part payment which will take a case out of the statute of frauds must be a possession authorized by the owners of the property, and must have been taken in good faith, and not fraudulently obtained. No right in equity can be founded upon a trespass or unauthorized possession. Eberville v. Leadville Mining & D. Co. (Colo.) 64 Pac. 200; McKinnon v. Nixon (Ala.) 29 So. 690; Cockrell v. McIntyre (Mo.) S. W. 648. The case made by the defendant falls within the law as stated by this court in the cases of Fox v. Easter, 10 Okla. 527, 62 Pac. 283; Halsell v. Renfrow et al., 14 Okla. 674, 78 Pac. 118; Id., 202 U. S. 287. The judgment of the district court pf Oklahoma county is affirmed, at the costs of the plaintiff in error. Burwell, J., who presided in the court below, not sitting; Pan-coast and Garber, JJ., absent; all the other Justices concurring.