Moore v. Taylor

Bryan, J., delivered the opinion of the Court. A bill in equity was filed by Eleanor Taylor, widow, and Thomas R. Jenifer and his wife, against Charles J. Moore and his wife, Robert Moore and Charles J. Moore, trustees, and Carl Vietor. Robert Moore was dead at the time the bill was filed. The object of the bill was to obtain a decree for the sale of certain real estate for the purpose of partition among the heirs of Ann Moore, deceased, who was the mother of Mrs. Taylor and Mrs. Jenifer and of Charles J. Moore.

A decree for sale was passed by the Court, and Charles J. Moore appealed. • We will state the facts as they appear to us from the pleadings and proofs. Mrs. Ann Moore died in eighteen hundred and seventy-three, seized and possessed in fee-simple of certain real estate in Baltimore County. She left surviving her Robert, her husband, and two daughters, Mrs. Taylor and Mrs. Jenifer, and two sons, William H. and Charles J. On the second day of April, eighteen hundred and eighty-eight, William conveyed all of his property, real and personal, to Robert, his father, and Charles, his brother, in trust, to pay the whole income of the property to himself during his natural life, and upon his death to hold all of the property upon such trusts as he should appoint by his last will and testament, and in default of such ⁶⁴⁶ appointment to distribute the “ principal sum thereof” to his two sisters and his brother, share and share alike. William died intestate, without issue and unmarried, on the fifth day of the same month.

Robert, the husband- of Mrs. Ann Moore, died in the year eighteen hundred and ninety-one. On the sécond day of May, eighteen hundred and ninety-three, 'Mrs. Taylor, Mrs. Jenifer and her husband, Charles Moore and his wife, executed an instrument of writing under their respective hands and seals, whereby it was agreed that for the purpose of avoiding the expense and costs of a partition suit, the real estate in question should be sold in Towson, at the Court-house door, on certain prescribed terms, and after a specified notice, and that the sale should be made by William M. Risteau, as auctioneer. The sale was made at the appointed time after due notice, as required, and John Longnecker became the purchaser, as agent for Mrs Jenifer and Mrs. Taylor, being appointed by them, with the sanction of Mr. Jenifer, the husband. The auctioneer made at the time a written memorandum of the sale.

The written agreement, which the heirs made for a sale by auction, was valid and competent. A question is made as to the binding effect of the purchase upon Mrs. Jenifer, she being a married woman. The fourth section of the Statute of Frauds enacts that contracts for the sale of land shall be in writing, and “signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized. ” A marked difference is to be noted between the language thus used, and that of the first section, in which it is required that certain estates in land shall be made or created by writing “signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing.” The text-books and decided cases have directed particular attention to this difference between the two sections and to its necessary consequences. Browne on the Statute of Frauds states the result of the cases to be that the agent for signing may in all the cases enumerated ⁶⁴⁷ in the fourth section be appointed without writing, unless the memorandum to be signed is to be sealed also; in which case the power must be conferred by an instrument of equal dignity.

Section 370 a. And when at a public sale land is knocked down to the highest bidder by the auctioneer, it is conclusively settled that he becomes the agent of both buyer and seller, and that the memorandum required by the Statute of Frauds is complete when he makes in his book an entry of the purchaser’s name and the terms of sale Singstack v. Harding, 4 Harris & Johnson, 186; Ijams v. Hoffman, 1 Md. 423 ; Browne on Statute of Frauds, section 351. Longnecker was the agent of Mrs. Jenifer and Mrs. Taylor to bid for this land, appointed with the sanction of Mrs. Jenifer’s husband; he bid it off for them, and the memorandum in writing was duly made by the auctioneer. Nothing more is required to make the contract of sale binding under the Statute of Frauds.

It is, however, argued that the title to the land was not good. It appears that in September, eighteen hundred and ninety-one, John Moore and Charles J. Moore, being partners in business, conveyed all their property to Carl Vietor, in trust, for the benefit of their creditors ; and that on the tenth of September, eighteen hundred and