
    
      C. Breithaupt, trustee, vs. James Thurmond.
    
    Where a party, having- no authority, but assuming to act as agent of the vendor, contracts to sell his land to the vendee, although the contract is binding on neither party until confirmed or adopted by the vendor, yet, if it is not receded from by the vendee before such confirmation, he cannot recede from it afterwards.
    In an action against the purchaser on a contract for the sale of land, the plaintiff is not bound to shew that he has title to the land. The contract admits, at least prima facie, his title, and the onus is on tho defendant to shew that he has none.
    Where a party contracts to buy land, styling the vendor trustee, he admits the vendor’s character as trustee, and prima facie, his right to convey. If, therefore, the vendor has no right to convey, the onus of shewing it is on the defendant.
    In a contract for the sale of land, unless the parties, by the terms of their contract, have fixed a day of payment, before titles are to be executed, the execution and delivery, or tender of titles, will be construed as a condition precedent to the vendor’s right of action for the purchase money.
    An action on a contract, whereby the defendant agreed to pav to the plaintiff, for certain land, fifteen hundred dollars — “ payments as follows: two hundred dollars cash; three hundred dollars in negro property; the balance, of one thousand dollars, to be paid in one, two and three years, bearing interest from the time of possession, and giving approved personal security, with a mortgage on the premises to secure the payment of the one thousand dollars.” Shortly after the contract was executed, the defendant entered on the land, and cultivated it for one year. The action was for the first payment of five hundred dollars. Held that the plaintiff could not recover, without proof that he had executed and tendered titles to the defendant before action commenced.
    
      Before Martin, J. at Edgefield, Fall Term, 1831.
    The report of his Honor, the presiding Judge, is as follows :
    “ This action was founded on an agreement, bearing date the 1st November, 1828, by which the defendant agreed to purchase from the plaintiff, by his agent, B. Mc-Kennie, three tracts of land. • The agreement is as follows: ‘ That the said Thurmond agrees to pay said Breithaupt, trustee as aforesaid, fifteen hundred dollars for three tracts of land,’ (describing them) ‘payments as follows: two hundred dollars cash, three hundred dollars in negro property, at valuation, the balance, of one thousand dollars, to be paid in one, two and three years, bearing interest from the time of possession, and giving approved personal security, with a mortgage on the premises, to secure the payment of the one thousand dollars.’ Breithaupt seems to have acted as trustee for Mrs. McKennie.
    “ The agreement was proved — and it was in evidence that B. McKennie was in possession of this land, and planted it four years, the last of which was in 1828 ; and in 1829, the defendant entered and made a crop on it. Mc-Kennie tendered a title to defendant, but whether it was that now produced in court, the witness did not know, as he could not read. It was said to be a titile from plaintiff for the land. The defendant refused to receive.it, and said something about his not getting a good title ; as also, that he wished to leave the place. The title was tendered by McKennie, and the witness understood it to be a title for the land sold to' defendant, but the latter would neither receive it or read it. A power of attorney from Breithaupt to McKennie, to deliver the title, was produced and proved. He was authorized, also, to complete the contract. This paper bore date 8th October, 1829. The title was again produced in court, and the signature of Breithaupt was proved by one witness, who saw him execute it. It also purported to have been executed by B. McKennie and wife, but there was no proof offered as to its execution by them. It was dated 6th October, 1829. The plaintiff’s attorney held in his hand a paper which he said was a deed from the sheriff to J. H. Garrett, for a part of this land. As also, a deed from Garrett to plaintiff for all the land sold to defendant; and all these papers were tendered to defendant’s attorney in court, who declined accepting them. But there was no proof offered as to any of them. The defendant produced no testimony, but bis counsel relied on the various grounds upon which they now appeal. I charged the jury, that according to my construction of the agreement, the plaintiff had a right of action, presently after its execution, for the $500. ' That he was not bound to produce a regular chain of title, or to produce on this trial his authority to sell as trustee. That as defendant denied plaintiff’s title, he should shew a title out of him; that the issue tendered by plaintiff was on the agreement; that pri-ma facAe the agreement purported an acquiescence on the part of the defendant in plaintiff’s title — and having treated with him as trustee, the onus was on defendant to shew he had no title or authority to sell; for it did not follow as a matter of course, that a trustee had not power to sell. That as to the power of Breithaupt to delegate his authority to sell, I did not think the' defendant could successfully raise that objection, for it was Breithaupt himself who was enforcing this contract, and as such, was bound by it as his own act. I thought the objection as to informality of Breithaupt’s title, and the want of proof that it was executed by McKennie and wife, could not avail the defendant, because they were not bound by the contract, or the law, to execute titles before defendant complied with the contract on his part, or declared his readiness to do so; and although he was to pay $500 in cash, and execute a mortgage and security, when possession was delivered, he had done neither, although nearly a year had transpired after he was put in possession ; and when the title was tendered, the objection was not to the form of the title. If that objection had been then made, it might have been, and no doubt would have been, obviated. The defendant refused to complete his contract, because, as he said, the plaintiff could not make him a good title, but as he did not afford at least a plausible pretext for his refusal, I thought he ought to be held bound by it. The jury found for the plaintiff.”
    The defendant appealed, and now moved this court for a non-suit or a new trial, on various grounds, which sufficiently appear in the opinion of the Court of Appeals.
    
      Thompson and Tompkins, for the motion.
    -, contra.
   Curia, per

O’Neall, J.

The argument here has presented three questions for our consideration and judgment. 1st. Was the agreement to purchase binding on the defendant 1 2d. Was the plaintiff bound to shew on the trial of this case, a good and indefeasible title to the lands, and a right to convey the same, in order to entitle him to a recovery'/ 3d. Was the .plaintiff bound to have tendered a title for the land according to the description given of it in the contract of sale, before he could maintain this action 1

1. I am not disposed to question that the agreement made with the defendant by B. McKennie, as the agent of C. Breithaupt, trustee, would not have been binding on either party until ratified and confirmed by Breithaupt. If, therefore, Breithaupt had refused to comply with the contract, or if, before he had assented to it, defendant had refused to abide by it, he could not have been compelled to do so. But after the plaintiff assents to the contract, and offers to perform every thing which his supposed agent has undertaken he shall do, it is too late for the defendant to disclaim the contract, on the ground that it was originally not binding on the plaintiff. For at the time he makes the objection, it is the contract of both the plaintiff and the defendant in law, and binding on them. It is true that an agent cannot delegate his authority to another, without power to that effect being specially conferred on him by his principal; it is also true, that a trustee to sell cannot sell and convey by attorney; but this case steers clear of all these objections. For, notwithstanding the contract is made by one purporting to be an agent, yet it is made the contract of the principal, by his assent to be bound by it, before the defendant disclaims it; his conveyance, too, is made personally, and not by attorney — he has, therefore, in this point of view, executed his part of the contract, and there can be no objection raised to its want of legal obligation originally. If a contract, not binding in law on one of the parties, but neither mala in señor mala prohi-bita, is performed by him on whom there is no legal obligation, the other party cannot set up the original want of legal liability on the part of the party who has performed it, as an excuse for non-performance on his part. Generally an agent, to bind his principal by deed, must execute it in his principal’s name. I am not disposed to think, however, that this technical rule extends beyond deeds. In a parol contract, if it appears to be made for another, and the person acting in a representative character is properly authorized to make it, it will bind his principal, no matter what may be the form used in making the contract. *

2. In an action at law on a contract for the sale of lands, the plaintiff is not bound to shew that he has any title. It is sufficient that the defendant, by his contract to buy, admits that he lias a title. The burthen of shewing the want of title is thrown on the defendant. His right to object to the plaintiff’s recovery at law, is on the ground of failure of consideration, and to sustain that as a ground to rescind the contract, if in possession of the land, he must shew that the plaintiff has no title to any part — if he is out of possession, the failure of the plaintiff’s title to a material part of the land, and which constituted the principal inducement to the contract, will be enough to rescind the contract. If the defence of failure of consideration is put on the footing of compensation by way of discount, then, whether the defendant is in or out of possession, he would be entitled at law to recover for the value of the land to which he was able to shew that the plaintiff’s title was defective. I concur, too, with the presiding Judge, that the defendant, by contracting with Breithaupt as trustee, admitted that to be his character. This was at least sufficient for the plaintiff, until the contrary was made to appear by the defendant. It is true, that in equity, a trustee cannot convey his cestui que trust’s estate, but at law there is no such rule — the legal estate is in the trustee, and his conveyance'is a good legal conveyance of it. In equity, too, the purchaser, if for a valuable consideration, and without notice, would be protected. A case might occur in which the existence of an equitable estate, which would defeat the legal estate conveyed, might be a good ground of defence at law to the purchaser. This, however, is to be shewn by the defendant, and it is sufficient for the purposes of this case to say, that we are not aware of any ground on which his legal estate can be defeated by the cestui que trust. It may be so — if it is, he must shew it.

3. In a contract for the sale of land, the general rule is, that the execution of titles is a condition precedent to the payment of the money, unless the parties, by the terms of their contract, have fixed a day of payment before titles are to be executed. This makes it always a question of intention, to be gathered from the contract — did the parties intend the execution of titles to be postponed until after the whole, or a part, of the purchase money was paid ? If nothing is said in the contract about the execution of titles, they must be executed or tendered before the plaintiff can have any right of action. What is the, consideration of the defendant’s contract of purchase ? It is the land. Until titles are executed, he has not received the consideration ; in such a case, the fee, and not the possession, is what the defendant has contracted to buy. Until titles are executed, by being delivered and accepted, or tendered and refused, there is no consideration to support the defendant’s contract. A contract to purchase land is a common law contract, and the plaintiff is b.ound to set ■out in his declaration, and prove on the trial, the consideration, to entitle himself to recover. In the case of the Bank of Columbia vs. Hagner, 1 Pet. ft. 465, which was also a case on a contract for the sale of land, it is said : “ Although many nice distinctions are to be found in the books, upon the question whether the covenants or promises of the respective parties to the contract are to be considered independent or dependent; yet it is evident, the inclination of courts has strongly favored the latter construction, as obviously the most just. The seller ought not to be compelled to part with his property without receiving the consideration ; nor the purchaser to part with his money without an equivalent in return. Hence, in such cases, if either a vendor or vendee wish to compel the other to fulfil his contract, he must make his.part of the agreement precedent, and cannot proceed against the other without an actual performance of the agreement on his part, or a tender and refusal. And an averment to that effect is always made in the declaration upon contracts containing dependent undertakings, and that averment must be supported by proof.” At page 467 it is said : “ From these authorities, it may be laid down as a settled rule, that at law, to entitle the vendor to recover the purchase money, he must aver in his declaration a performance of the contract on his part, or an offer to perform at the day specified for the performance. And this averment must be sustained by proof, unless the tender has been waived by the purchaser.”

The only inquiry, then, on this part of the case, is, did the parties intend payment to precede the execution of titles 1 The contract is, “ that the said Thurmond agrees to pay said Breithaupt, trustee as aforesaid, fifteen hundred dollars for three tracts of land,” (describing them) “payments as follows: two hundred dollars cash — three hundred dollars in negro property, at valuation — the balance of one thousand dollars, to be paid in one, two and three years, bearing interest from the time of possession, and giving approved personal security, with a mortgage of the premises, to secure the payment of the one thousand dollars.” The action is brought for the $200 to be paid in cash, and $300 in negro property, at valuation, and the question must be considered in relation to that payment. It was conceded in the argument, that if the action had been for either of the other payments, it was necessary to have shewn a tender of titles on the part of the plaintiff, to entitle him to recover. Is there any legal distinction in the contract, as to what would be necessary to enforce the different payments } To me there appears to be none. It is true in the last, interest is to accrue from 'the day of possession, but that is a mere equivalent for rent; the requisition of a mortgage to be executed, shews plainly enough that the parties contemplated that the defendant should have the title before he should be required to secure the last payments. Is there any thing in the contract which shews that the parties contemplated that the first payment should be made before titles were executed ? It is clear there is not. The contract is to buy the land for a gross sum, to be paid in different payments. But the land, that is, the legal title, is the consideration of each. There is nothing which authorizes us to say that the promise of the plaintiff to make a title at a subsequent day, is the consideration of the payment now attempted to be enforced. When was it to be paid 1 On the day of the contract, is the plaintiff’s answer. That would be. true if the consideration had been executed. It was, however, then entirely executory. It may be with as much propriety said, that it was to be paid when titles were executed — and this is perhaps the legal interpretation of the contract, looking alone to that part which relates to the first payment. But taking the whole contract together, and giving it a reasonable construction, I am satisfied that the payment was to be made on the day possession was delivered ; and that titles were at the same time to be executed. In, however, any view of the case, the execution of titles, or a tender and refusal, was necessary to be averred and proved to fix the defendant’s liability to pay. In this respect, the charge of the presiding Judge was, we think, erroneous, and a new trial must be ordered. For although it appears from the evidence, that a title was tendered by B. McKennie, as agent for the plaintiff, under a power of attorney, yet as the presiding Judge held it to be unnecessary for the plaintiff to have tendered a title in order to enable him to maintain this suit, the question of tender was not passed upon by the jury. It may be that it was made by B. McKennie before the power of attorney was executed, for it appears to be junior to the date of the deed. It may be that it was made after the defendant had abandoned the possession, and given notice that he considered the contract as at an end. Either of these would be, perhaps, enough to shew that in legal contemplation, the tender made would not be enough to fix the defendant’s liability to pay the money. It may, too, turn out that the jury may believe that the witness was mistaken in saying that the deed produced on the trial, was the one which he saw tendered. For it seems that he can neither read nor write, and it is possible that he may have been mistaken. The question of a tender made, is a question of fact upon which the jury must pass, and their finding of it is necessary to enable the court to pronounce judgment for the plaintiff. The motion for a new trial is granted.

Johnson and Harper, JJ. concurred.

Note. Vide Johnson vs. Purvis, 1 Hill, 322; Tharin vs. Pickling, 2 Rich. 361.  