
    Hobby v. Finch and Knapp.
    An advertisement that lands are to be sold at public auction, with tbe terms of tbe sale, etc., is a sufficient memorandum in writing witbin tbe Statute of Frauds, to bold tbe vendor to a performance of bis agreement.
    The declaration states, that tbe defendants were administrators on tbe estate of Caleb Finch, deceased; and bad obtained an order from tbe Court of Probate to sell at public vendue a tract of land belonging to said estate, and that, by a number of advertisements, they gave notice of tbe time and place of sale. That tbe plaintiff attended at tbe time and place appointed by tbe defendants in their advertisements, where tbe conditions of tbe sale of said land were published and make known to tbe plaintiff by tbe defendants; which were, that tbe land so set up for sale, should be struck off to tbe highest bidder, and a deed signed and executed by tbe defendants to tbe person that should pay to them tbe greatest price, or become obligated to them in tbe largest sum of money (with surety if required), for said land. And that tbe plaintiff, according to tbe conditions so made known, did bid the highest price for said land, and became obligated with surety to the defendants in the greatest sum of money of any person present at the time where said land was offered for sale as aforesaid; but that the defendants have never executed said deed according to the tenor of their promise, etc.
    Mr. Sturgess, for the defendants,
    pleaded in bar, that the agreement mentioned in the declaration, was never reduced to writing, nor was there any memorandum or note thereof ever made in writing and signed by the defendants, or any other person by them thereunto lawfully authorized, which is made necessary by the statute “for prevention of frauds and perjuries.”
    Mr. Davenport and Mr. Thompson, for the plaintiff,
    replied, particularly describing the advertisements and conditions of sale, signed by the defendants, and that the plaintiff had fully complied with the terms therein expressed; and that, therefore, there was a memorandum, or note made in writing, of the agreement mentioned in the declaration.
    On demurrer to the replication, the only question was, whether the advertisements and conditions of sale, described in the pleadings, were such a memorandum of the agreement as would save this case out of the Statute of Frauds. By which it is enacted, “ That no suit in law or equity shall be brought or maintained upon any contract, or sale of lands, tenements, or hereditaments, or any interest in or concerning them; unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be made in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”
    Replication adjudged sufficient.
   By tbe Ooubt.

Tbe advertisements and conditions of

sale set forth in tbe reply of tbe plaintiff, are a sufficient evidence, witbin tbe meaning of tbe statute, of an agreement in writing signed by tbe defendants, to sell tbe land to tbe highest bidder (1 Blackstone’s Reports, 599, Simon v. Metivier; 3 Burr. 1921, S. C.; 1 Wilson, 118, Welford v. Beezley and others); and as tbe plaintiff was tbe highest bidder, and tendered security for payment, pursuant to tbe written agreement of .the defendants, be has a right of action against them, for refusing a deed, which, by their agreement, they bad promised to any person, complying with their terms. If an action in such case could not be sustained, it would discourage people from bidding at public auction, and render ineffectual tbe laws directing such disposition of estates.

Ellsworth, J.,

dissenting. 1st. Because tbe declaration is ill. It doth not appear that tbe plaintiff paid or offered to pay, or secure tbe sum be bid for tbe land, nor that be bid any sum that could have justified tbe administrators in passing a deed: Nor is there any averment of tbe value of tbe land, or any rule of damages given. 2d. Tbe advertisement is no evidence or memorandum of tbe agreement on which tbe action is grounded. 1 Str. 426, Seagood v. Neale. Tbe agreement was made at tbe time tbe land was bid off, and was made and expressed on tbe one part by tbe bid made for tbe land, and on tbe other part by striking it off. Here tbe minds of tbe parties met, and tbe substance of tbe agreement, as thus expressed, was, that tbe plaintiff should have tbe land for tbe sum be .bad then bid for it, and that a deed should be executed accordingly. Tbe advertisement doth not express this agreement, nor either part of it; nor was any reference bad to tbe advertisement in forming this agreement, farther, than as to tbe mode of payment. That this sale was at public auction, makes no difference. It is as requisite by tbe statute that public sales of land should be guarded as private ones; and it is as easy to be done. A memorandum of the sale might be taken in writing from the vendor, and would hardly be refused, if required at the time of the sale or agreement. I think the statute extends to this case, and that it has not been complied with.  