
    Jenkins vs. Atkins.
    Jenkins, acting as the'attorney in fact of Philpot, sold five hundred acres of land, belonging to Philpot, to Atkins, took the note of Atkins for the purchase money, and gave him a bond for title. Philpot died the day before the contract; neither party knowing his death at the time of the contract. This contract was void, and Jenkins having subsequently acquired a title to the land and tendering a deed to Atkins did not entitle him to a specific execution of the contract.
    This bill was filed on the 29th of April, 1835, in the circuit court of Weakly county, by John Jenkins against William Atkins, in order to compel the specific execution of a contract concerning a tract of land lying in Weakly county. It was subsequently transferred to the chancery court by virtue of the provisions of the act of 1835, ch. 41. The bill charges that John W. Philpot was the owner of a tract of five hundred acres of land lying in the county of Weakly, being part of a tract of fourteen hundred and ninety-four acres entered in the name of the president and trustees of the University of North Carolina by entry No. 73, thirteenth district, third range and sixth section, and wishing to sell said tract of land, said John W. Philpot, by his deed, constituted complainant his attorney in fact to sell it; that in pursuance of such power he sold the land on the 3d day of October, 1831, to William Atkins for the sum of one thousand one hundred and twenty-five dollars, and took the promissory note of said Atkins for the said sum, due one day after the date thereof, and at the same time, as the agent and attorney in fact of said J. W- Philpot, gave a bond to said Atkins obligating the said Philpot in the sum of one thousand one hundred and twenty-five dollars to make said Atkins a go.od and valid title to said land; that said Philpot, after the execution of the power of attorney, and before the sale aforesaid, conveyed the land to his son, Ed. Philpot, and directed the complainant to pay over the proceeds to his said son; that on the 2d day of October, 1831, said Philpot died; that at the time of the sale of the land to Atkins he did not know of the previous death of said John W. Philpot; that since the death of John W. Philpot he and one John Terrell had obtained a good and valid title to the land from Edward Philpot, the son of John W. Philpot, deceased, and that he was now ready to make such title as -the court should direct. The bill further charges that since the death of John W. Philpot, Atkins had paid him the sum of three hundred dollars of the money due on said note of one thousand one hundred and twenty-five dollars; that he had instituted an action against Atkins upon the note, and such action had been defeated upon the ground that said contract was void; that Atkins had also sued complainant to recover back the sum of three hundred dollars paid to him, and had instituted an action against him on the bond, and that said suits were now pending.
    The bill prayed that the suits against him might be enjoined, and that said Atkins should be compelled to pay him the consideration money, one thousand one hundred and twenty-five dollars, and that he should take a title to the land.
    Atkins’ answer was filed on the 22d May, 1835. He admits the execution of the contract as stated in the bill. He states that John W. Philpot was dead at the time of the malting of the contract; that he did not know of the death of Philpot at such time; that when he paid the sum of three hundred dollars, in part fulfilment of said contract, he was aware of the fact that Philpot was dead, but did not then know that said Philpot had died previous to the execution of the note and bond set forth in the bill of complainant, on the 3d of October, 1831, and did not know that he was dead till he had made improvements of the value of five hundred dollars. He admits that he had instituted suits against the complainant to recover the value of the improvements and the sum of three hundred dollars paid in the fulfilment of the contract, but alleges that said suits were not instituted for two years after the execution of the contract aforesaid, and that said Jenkins was then unable to make him a title to the premises.
    At the November term, 1835, leave was given defendant to file an amended answer. This amended answer was filed on the 28th of March, 1837. He alleges in it that John W. Philpot, previous to his death, had made a deed of gift of this land to his son, Edward, and that said Edward had instituted an action of ejectment against him, returnable to the -November term, 1833, of the circuit court of Weakly county, and that he had been ejected, &c. Complainant filed a general replication.
    At the February term, 1838, the chancellor directed an inquiry by the clerk and master into the title of the vendor, Jenkins, to the land in controversy. The clerk and master reported that “the land in controversy was granted by .the State of Tennessee to the president and trustees of the University of North Carolina; that said land was conveyed by the University to Thomas Hunt on the 18th January, 1826, (which deed was registered in the county of Weakly on the 3d of August, 1828;) that said land was conveyed by deed from said Hunt to John W. Philpot on the 14th day of April, 1827, (which deed was registered in Weakly county on the 25th October, 1827;) that said land was conveyed by Philpot to his son, Edward Philpot, by deed of gift dated the 30th of September, 1831, and registered on the 20th day of August* 1838; that said land was conveyed by said Edward Philpot to'complainant, Jenkins, and John Terrell, on the 20th March, 1834, which deed was registered in Weakly county on the 18th August, 1838; and that said Jenkins and Terrell had executed and filed with the papers in the cause a deed in fee to the defendant Atkins, for the land originally agreed on between the parties.” Upon examination of the deeds and exhibits filed, this report was confirmed.
    At the August term, 1838, the cause came on to be heard before chancellor Brown, and being argued, he dismissed the bill. The complainant appealed.
    
      A. W. O. Totten, 'for complainant.
    1. It may be fairly inferred that complainant acted in perfectly good faith in the sale of the land, believing he had a power fully authorizing him to make a title. The death of his principal, being only a day before the contract, was unknown to both parties. Under these circumstances, the complainant having put himself to the trouble and expense of procuring the title, there seems to be no equitable reason or ground why defendant should not be compelled to accept it.
    
      2. But the chancellor dismissed the bill on the ground that there was no mutual obligation existing between the parties to the contract; that Jenkins, having acted under a void power, could not bind his principal, and that, as he acted as agent only, he did not bind himself. It is fully admitted that where the obligation of a contract is not mutual, or where only one party is bound, a specific performance will not be decreed. Parkhurst vs. Van Courtland, 1 J. C. R. 282: 1 J, C. R. 370: Sug. Yen. 137: Armiger vs. Clark, Sug. Yen. 196. It is, however, insisted that the chancellor erred in applying this rule to the present case. The obligation was mutual; the complainant was bound by the contract; his obligation is predicated on the fact that he had no power to make the contract. If a person seal a bond as attorney for another without authority, he is personally liable in the same manner as if he had covenanted in his own name. White vs. Skinner, 13 John. Rep. 307: Appleton vs. Binlcs, 5 East. Rep. 148: 7 Term. Rep. 207: 2 Cains’ Rep. 254: 4 Bur. Rep. 2108. So if an agent exceed his authority he is liable personally to a third person on the contract itself as a principal. Dusen-bury vs. Ellis, 3 John. Cases, 70. Where a party professes to act for another and not for himself the manner of signing and executing the contract is wholly immaterial; the question is whether he had the power or not. If he had not he is personally bound, though he signed the name of his principal. If he had he is not bound, though he signed and sealed the instrument with his own name and seal. The liability of an agent, or his exemption from it, does not depend upon a thing so very immaterial as the mere form of signature, and if it contain the name of another, from whom the pretended agent has no power, such name will be regarded as surplusage and the agent as acting for himself. 3 John. Ca. 70: Hodgson vs. Dexter, 1 Cranch, 345: 1 Cond. Reports, 329: Urwin vs. Walsey, 1 Term Rep. 672. It is, however, true that where a party has a power, but executes the deed so imperfectly as not to bind his principal, the deed may be valid, because there is a principal with whom the contract was intended to be made, and with whom it might be lawfully made under the power, if it had been properly pursued, as where the deed purports to be made with the principal, and it is signed on his part by the agent, without naming the principal. Comb’s Case, 9 Co. 76: 1 Comyn’s Digest, 776. But even this is an old common law rule, subject to many exceptions and modifications. It is, therefore, contended that there was sufficient mutuality in the contract to take the case out of the rule above referred to.
    3. The title bond was executed by complainant without naming his principal in the penal part thereupon. Would not complainant be personally liable in an action at law for the penalty? The seal might be regarded as his own and the name of Philpot rejected as surplusage, or the writing is valid as a contract without a seal. This seems in fact to be the true construction of the contract; the effect of which would be to bind the complainant to convey or to cause Philpot to convey the land in question on payment of the purchase money. Such a contract would be enforced in equity against the vendor, as where a husband covenants that his wife shall convey or a father that his infant son shall convey title to land. Sug. Yen. 199.
    4. Finally, this case addresses itself to the sound discretion of the court. The complainant sold the land in good faith, and it was by no act of his that the contract was delayed for a period in its execution. The defendant will get the object of his purchase.
    
      J. Dunlap, for defendant.
   Green, J.

delivered the opinion of the court.

It has been insisted for the defendant in this case that there was no mutuality in the agreement set up in the bill, and that therefore he is not bound to perform it; while the complainant’s counsel contends that Jenkins was personally bound by the contract he made in the name of Philpot, because of his want of authority to make that contract, and therefore the defendant is liable to him, and hence the agreement creates a mutual obligation.

It is true that in some cases a party who assumes to make a contract in the name of another, without authority to do so, is liable personally to fulfil the obligation entered into by him. 13 John. Rep. 307: 3 John. Ca. 10. But such is not the case here. The contract was made in good faith upon the supposition that the party making it had ample authority. But the fact turned out that his authority had recently, and without the knowledge of the parties, ceased to exist by the death of the principal,‘so that no right was communicated to the thing agreed to be sold, and consequently there could be no obligation in Jenkins to make a title.

It is not like the case where one makes a bond for money in the name of another without authority. In such case he can fulfil the contract himself, and is bound to do it. But when one undertakes, as attorney in fact for another, to sell an articles the property of that other, he communicates to the purchaser no right to -the thing sold unless he had authority to sell it. The purchaser could not in such case maintain a bill to enforce a title either against the owner or the pretended agent. The only remedy would be at law for damages. But these questions can never arise except where a remedy is sought against a party thus assuming to contract for another. In this case they have no application. The defendant did not contract with Jenkins; he intended to contract with Philpot, but as he was dead the whole agreement was void. The bond of the defendant for the money was made payable to Philpot, and if he is bound to take the land the other is bound to pay the money. But to whom is he bound to pay it? Not to Jenkins certainly. As the contract was to pay it to Philpot, it must be paid to him or to some one having a legal or equitable right derived from him. But Jenkins had no such right, and there is no principle upon which a court of equity can decree the money to him. As, therefore, the complainant has no right, legal or equitable, to demand the .money that Atkins agreed to pay Philpot for the land, arising either from his connexion with the contract as the attorney in fact of Philpot or from the fact that he has subsequently become owner of the land and is willing to convey it, there is no equity in the bill, and it must therefore be dismissed with costs. Affirm the decree.  