Baxley Hardware Co. v. Morris , 165 Ga. 359 ( 1927 )

Gilbert, J.

1. “Any contract for sale of lands, or any interest in or concerning them,” to be binding upon the promisor, must be in writing signed by the party to be charged therewith, or some person by him lawfully authorized. Civil Code (1910), § 3222 (4). The contract sought to be canceled in this proceeding, purporting to be a lease- of real estate for a period of seven years, falls under the section cited.

2. The foregoing section does not apply “where there has been performance on one side, accepted by the other in accordance with the contract,” and “where there has been such part performance of the contract as would render it a fraud of the party refusing to comply, if the court did not compel a performance.” Civil Code (1910), § 3223 (2, 3).

3. “A deed to lands is not required to be under seal in this State.” A., K. & N. Ry. Co. v. McKinney, 124 Ga. 929 (5) (53 S. E. 701, 6 L. R. A. (N. S.) 436, 110 Am. St. R. 215) ; Patterson v. Burus, 150 Ga. 198 (103 S. E. 241). “A lease contract to land for years is likewise not required to be executed under seal.” United Leather Co. v. Proudfit, 151 Ga. 403, at p. 405 (107 S. E. 327), and cit.

4. The contract sought to be canceled in this case concluded as follows: “This contract entered into in duplicate this the 21st day of September, 1921. Mrs. F. A. Morris (L. S.) Baxley Hardware Co., by D. M. Minchew (L. S.) Signed, sealed, and delivered in presence of J. C. Rogers.” Nowhere in the body of the instrument are to be found any words indicating that it was the intention of the signers thereof that the instrument should be under seal. II, is well settled that the intention to execute a sealed instrument must be indicated in the body of the instrument as well as after the signatures. Echols v. Phillips, 112 Ga. 700 (37 S. E. 977) ; Jackson v. Augusta &c. R. Co., 125 Ga. 801 (54 S. E. 697), and cit.; Thomason v. Wilson, 127 Ga. 141 (56 S. E. 302) ; Burkhalter v. Perry, 127 Ga. 438, 441 (56 S. E. 631, 119 Am. St. 343) ; Cooper v. Dixie Cotton Co., 144 Ga. 33 (86 S. E. 242). The phrase, “Signed, sealed, and delivered in the presence of,” preceding the name of the witness, does not indicate any intention oE the parties. It is merely a statement by the witness.

5. “No instrument shall be considered under seal unless so recited in the body of the instrument.” Civil Code (1910), § 4359. This section has been applied to contracts for the purchase oE land, which would include contracts for the purchase of an interest in land, such as the purported lease here sought to be canceled. Elrod v. Bagley, 150 Ga. 329 (103 S. E. 841).

6. The purported lease not being a sealed instrument, the authority of W. W. Morris to sign the name of his wife» thereto was not required to be under seal; but being required to be in writing, where the agent signs for the principal the agent’s authority must be in writing.

No. 5996. December 15, 1927.

7. Parol evidence was admissible, tending to prove that Mrs. Morris knew of the contract and of the monthly payment of rents, and that the defendant expended from $1500 to $2000 in making improvements on the property as contemplated under the rental contract. The court erred in rejecting such evidence.

8. Under the pleadings and the evidence, including that referred to in the preceding headnote, and testimony by plaintiff that she made her husband her general agent, the jury would have been authorized to find that, although the contract was required to be in writing and the written contract was not binding because plaintiff’s name was signed by her agent without written authority, yet, on account of the improvements made by the defendant as contemplated in the rental agreement and its possession of about four years and payment of the rent accepted by plaintiff, the plaintiff was estopped from denying the validity of the contract. Civil Code (1910), § 3223 (2, 3); Petty v. Kennon, 49 Ga. 468; Steininger v. Williams, 63 Ga. 475; and compare Marshall v. Hicks, 159 Ga. 871 (127 S. E. 273) ; Sikes v. Carter, 30 Ga. App. 539 (118 S. E. 430) ; Simonton v. Ins. Co., 51 Ga. 76.

9. The demurrer to the petition was properly overruled. The court erred in directing a verdict for the plaintiff, and in overruling the motion for new trial. Judgment reversed.

All the Justices concur except Atkinson, J., who dissents from the rulings expressed in the seventh and eighth headnotes, upon principles that are fully stated in the dissenting opinion in Brandon v. Pritchett, 126 Ga. 286. J. P. Highsmith and Wade H. Watson, for plaintiffs in error. J. B. Moore and Gordon Knox, contra.