Warner, J.
This was a bill filed by Smith, the complainant, against Wynn and Adams/ praying that the defendant, Wynn, might be specifically decreed to execute a good warranty title to a' house and lot in the town of Eatonton. It appears from the record, that on the 20th of July, 1863, Adams, as the agent of Brown, sold the lot to the complainant for $3,500 00 in Confederate money, and on that day signed a written memorandum, in which the terms of the sale were recited, that $1,100 00 of the purchase-money had been paid, and Adams bound himself to make a good warranty title to the property when the balance of the purchase-money should be paid, or that Wynn should do so. This written memorandum was signed by Adams as agent. It also appears in the record, that some years before this sale to the complainant took place, Wynn had sold the house and lot to Brown, taking his notes for the purchase-money, and giving him a bond to make a title thereto when the purchase-money should be paid. Brown went into the possession of the lot, and occupied the same for some time, and when he was about to leave the county on the 20th May, 1863, gave written authority to Adams to sell the house and lot, and out of the proceeds of the sale to pay first what was due to Wynn, and then to pay his other creditors. It was under this authority from Brown that Adams, as the agent of Brown, sold the property to the complainant. When Adams was about to sell the house and lot, he applied to Wynn to know if he would take Confederate money for the debt due him from Brown, and he said that he would, and executed a deed conveying the property to Brown, and deposited the same ,with Adams? the agent of Brown, to enable him to consummate the trade made with complainant. *465There is evidence in the record that within a month after the complainant purchased the property from Adams, he deposited the $2,400 00, the balance of the purchase-money in bank, and Adams was notified that the money was deposited there subject to his order. The complainant went into the possession of the property under the contract of purchase from Adams as the agent of Brown. The jury, upon the trial of the cause, under the charge of the Court, returned a verdict in favor of the complainant, and decreed that the defendant, "Wynn, should specifically perforin the contradi made by Adams with the complainant on the 20th July, 1863, by making to the complainant a good warranty title to the property. The defendant, Wynn, moved for a new trial, which was overruled by the Court, and that is the error complained of here. There is evidence in the record which would have authorized the jury to have found that Adams was the agent of Wynn to receive and pay to him the amount due on Brown’s notes, but there is no evidence that would have authorized the jury to find that Adams was the agent .of Wynn to bind him, to make a warranty deed to the property to the complainant. In the absence of any positive evidence that Adams had the authority to bind (him as his(agent to make such a warranty deed to the complainant for the property, the fact that Wynn executed the title to Brown, and deposited it with Adams to enable him, as the agent of Brown, to consummate the trade made with the complainant, rebuts the presumption that Adams was his agent to make the title to the property. Adams could not bind Wynn to make a warranty title to the complainant without authority from Wynn todo so, and we find no such authority, either express or implied, disclosed by the evidence in the record before usr> The complainant’s bill for specific performance is based on the written memorandum signed by Adams, as agent, who had the written authority of Brown to sell the property, and although Adams, as Brown’s agent, could bind him to make a title to the property to the complainant, still he could not bind Wynn to do so without Wynn’s authority, and the evidence does not show that Adams had any authority from Wynn to> bind him to *466make a warranty title of the property to thé complainant. Adams was Brown’s agent to sell the property and make a title thereto, but he was not. Wynn’s agent to sell it for him, and bind him to make a warranty title thereto, without his authority. If Wynn had authorized Adams to sell the house and lot to the complainant as his agent, (of which fact there is no'evidence in the record,) such authority to sell the property would not of itself have authorized Adams, as his agent, to bind him to warrant the title to the property sold. To have authorized Adams as the agent of Wynn to bind him to make a warranty title to the property, he must have had the special authority of Wynn to do so: Gibson vs. Colt, 7th John. Rep., 390; Nixon vs. Hyserott, 5th John. Rep., 57. The agent, in order to bind his principal to make a warranty title to the property sold, must have the authority of his principal so to bind him, which the evidence in this case does not show that Adams had from Wynn in any view of the facts contained in the record. Under the power conferred on this Court by the Code, to award such order and direction to the cause in the Court below as may be consistent with the law and justice of the case: it is considered and adjudged by the Court that the judgment of the Court below be reversed, and a new trial ordered, unless the complainant shall consent to take and enter a decree that Wynn should execute a warranty deed to the property to Brown, bearing the same date as the one. executed by him to Brown heretofore, and deposited with Adams, as the agent of Brown, to enable him to consummate the contract made with the complainant for thé sale of the property as the agent of Brown, and that the deed so executed shall operate as an extinguishment of Wynn’s interest in the property, and that Adams be decreed as the agent of Brown to execute a warranty deed to the property to Smith) the complainant, in the name of Brown, his principal. Let the judgment be entered in conformity with this opinion on the minutes of the Court.
Brown, C. J., concurred in the judgment, laying he did not •agree as to the warranty by Wynn, but he wrote no opinion.