Ledbetter v. Walken , 31 Ala. 175 ( 1857 )

"WALKER, J.

— Kimball’s authority, as the agent of Cocke, to sell the land in controversy, is an established fact in this case. That authority was verbal. A verbal authority is sufficient to authorize the performance of any act, which is not of such a nature as to require that it be done under seal. A contract to sell land may be valid, and may transfer the equitable title, although the Writing which evidences the contract may not be under seal. If an agent, having a verbal authority, should make ■;he contract by deed, which would have been valid if made by writing without a seal, the contract will enure as a simple contract, and the writing will take the contract out of the statute of frauds. — Dunlap’s Paley on Agency, 157, note A; Cocke v. Campbell & Smith, 13 Ala. 286; Tapley v. Butterfield, 1 Metcalf, 515; Robinson v. Garth, 6 Ala. 204; Story on Agency, § 50. From these principles it results, that the fact of Kimball’s authority being merely parol does not impair the complainant’s right to relief in this case.

2. It is conceded that complainant’s equitable title is older than the defendant’s (Croft’s) legal title; but it is insisted, that Croft is an innocent purchaser, for valuable consideration, without notice of the complainant’s equity, and that therefore he is entitled to the protection of the chancery court. To make out the defense of innocent purchaser for value, it is said, in a well considered decision of the Supreme Court of the United States, to be necessary that the purchaser should state the deed of purchase, the date, parties and contents, briefly; and that the yendor was seized in fee, and in possession.; and should state the consideration, with a distinct averment that it was bona fide and truly paid, independent of the recital of the deed; and should deny notice, previous to and down to the time of paying the money, and the delivery of the deed; and if notice is specially charged, should deny all circumstances referred to from which notice can be inferred. — Boone v. Chiles, 10 Peters, 177; see, also, Johnson v. Toulmin, 18 Ala. 50. “ The notice must be positively, and not evasively denied, whether it bo or be not charged by the bill. If particular instances of notice, or circumstances of fraud, are charged, the facts from which they are inferred must be denied, as specially and particularly as charged. If the conveyance pleaded be of an estate in possession, the plea must aver, that the vendor was in possession at the time of the execution of the conveyance. The plea must also distinctly aver, that the consideration money mentioned in the deed was bona fide and truly paid.” — 2 Sugden on Vendors, 854-355-359, chap. XVIII.

Tested by the principles above stated, the answer fails to make out the defense. It nowhere denies that the defendant Croft, at the time of his purchase, had notice of the previous purchase by the complainant. The denial which appears from the answer to be relied upon is in the following language: “ He denies that he knew, at the time of said purchase by him of the said Cocke, that the said complainant had then bargained for the said land with the said Kimball.” There is a difference between the want of knowledge, and the want of notice. He may have been notified, without being made to know of the complainant’s purchase. The bill expressly charges, that Croft, at the time of his pretended purchase, was informed and advised of the authority and agency of Kimball, and of the sale by him to the complainant. The answer avers, that Croft knew nothing of the authority of Kimball. Conceding that, by a liberal construction, this amounts to a denial of notice of Kimball’s agency, the answer nowhere meets and responds to the allegation that Croft was informed and advised of the sale by Kimball. The omission to answer this allegation, is an admission of it. If Croft was informed of the sale by Kimball to the complainant, that, together with the other circumstances in this case, was sufficient to put him upon inquiry, whether he knew of Kimball’s agency or not. The effort here is, to manufacture the defense of innocent purchaser out of facts not quite sufficient to authorize it; and there is a resemblance which it requires care and scrutiny to distinguish from the reality, but it is a mere resemblance.

It is established by the answers and proof, that the owner of the land resided in Montgomery, and had Kim-ball as his agent in the vicinity of the land in Tallapoosa eounty; that the defendant Walker applied to Kimball, after, and on the same day with, the complainant’s purchase ; that, upon being informed of complainant’s purchase, he became excited, and declared his intention to circumvent the complainant; that he went forthwith to Croft, his son-in-law, who had never seen the land and knew nothing about it, and procured him to go to Montgomery, and purchase the land for him, — promising that if he would get a good title to it, he would give him (Croft) four hundred dollars, and that Croft could thus have the difference between the sum for which he might buy the land and the four hundred dollars; that Croft accordingly went to Montgomery, and bought the land, before the owner was informed of complainant’s purchase, taking the title in his name, and paying the purchase-money, three hundred and twenty dollars; and that Walker afterwards entered upon the land, and cut timber. Waiving the question, whether, upon these undisputed facts in the case, the chancery court ought to hold Croft, though a purchaser without notice, a trustee for the complainant, or permit Walker to accomplish his fraudulent purpose through the instrumentality of Croft; we must at least regard it as exceedingly improbable, that Croft went to Montgomery, and bought the land for Ms father-in-law, under such circumstances, without some information of the purpose to defeat the purchase by the complainant; and we are authorized, upon the admitted facts, to exact from Croffc the clearest and most explicit denial of notice.

It is due to the chancellor who decided this ease to say, that we have not dissented from his opinion as to the law in any respect; that upon the question of agency, we have followed him; and that the artful omission of the answer to meet the question of notice, does not appear to have been brought to his attention, or to have been considered by him.

The decree of the chancellor is reversed, and we proceed to render what we deem the proper decree in the case. It is ordered, adjudged, and decreed, that all the right and title, either at law or in equity, vested in the defendants Croft and Walker, or either of them, to a certain tract of land situated in Tallapoosa county in the State of Alabama, known and described as the north-east quarter of section eighteen (18), township nineteen (19), of range twenty-three (23), be divested out of them respectively, and vested in the complainant, upon the complainant’s paying to the registrar of the chancery court for the thirteenth chancery district of the State of Alabama the sum of two hundred and fifty dollars, with interest on one half of that sum from the first of January, 1853, and on the other half from the first of January, 1854; that the said registrar shall pay over the said sum of money to the defendant Croft, and take his receipt for the same; and that defendant Cocke shall deliver the two notes, each for one hundred and twenty-five dollars, given to him for the purchase of said land by the complainant, which are described in complainant’s-bill, to the said registrar, to be canceled; and that said registrar shall report to the next term of the chancery court of said chancery district.

It is further ordered, adjudged, and decreed, that the defendants Walker and Croffc pay the costs of this court, and in the court below; and the cause is remanded to the court below, for further proceedings in the execution of the foregoing decree.

Rice, C. J., not sitting.