
    *Lot Pugh and William J. Shultz v. Gerrard R. Chesseldine.
    In the sale of real estate at auction, a mistake by the auctioneer in entering the name of the owner of the real estate in the memorandum of sale, will be corrected in equity.
    If the purchaser has treated the contract as valid, although he might have abandoned it, he will be required to perform.
    When the contract is for a good title, a quitclaim deed is sufficient, if the-grantor has the title.
    This is a bill in chancery, from the county of Hamilton, to enforce the specific performance of a contract for the purchase of real estate.
    The complainants are the assignees of Charles Shultz; and, as such assignees, were the owners of the property described in the-bill. On May 27, 1839, this property was sold at public auction, and the defendant, Chesseldine, became the purchaser, at the price ■of $14,050.' The terms of sale, and the defendant’s bid, were reduced to writing, at the time, by the auctioneer, John J. Wright. The following is a copy of the terms of the sale, proved by the auctioneer, as entered by him at the time: “ For G. Shultz, May '27th, at auction, corner of Lower Market and Main street, fifteen feet front, by forty-six feet deep; Chesseldine. Terms of sale, one quarter cash; balance in twelve, eighteen, and twenty-four months, with interest, secured by mortgage. J, J. Wright, auctioneer.”
    The defendant, in his answer, denies the substantial allegations in the bill.
    1. That the premises were advertised for sale at auction.
    2. That the complainants were the owners of the lot.
    3. That a sale was made to the defendant, or that any contract, or memorandum of a sale, by complainants, to him, was made, in writing, at any time, or signed by him or his agent.
    *4. He denies any tender of a deed or any demand, to comply with the terms of sale.
    5. Denies he has been in the possession of the premises, as a purchaser; but held them under a lease, dated January 5, 1839, .and afterward extended to January 15, 1840; and that Charles Shultz always called for and received the rent.
    The defendant avers, that about May 27, 1839, the auctioneer offered sundry lots at auction, etc., all of which he proclaimed to be clear of all incumbrances, and that, if a good title could not be made in ten days from the sale, it was to be no sale, and the purchasers released from their bids; that the defendant bid upon those terms; but that, on examination, he afterward ascertained that the premises were subject to two mortgage liens, to the Bank of the United States, for nearly $51»,000; that a suit was, and is still, pending in reference to the title to the premises, to which the respondent was not a party, and of which mortgages, and the pend-ency of which suits, he had no notice at the time of sale, or he should not have bid thereon. The defendant avers, that .as soon as he discovered the defects he gave up all intention of taking the property, and communicated the same to Charles Shultz, and came to an understanding with him, that the purchase should be abandoned, and that it was relinquished accordingly. He avers that no valid title can be made, and that he ought not to be held to said purchase, after so long delay, and want of good faith, on the part of the complainants. The defendant also relies upon the ■statute of frauds.
    Charles Pox, for the plaintiff:
    The first question for the decision of the court is as to the validity of the contract.
    The memorandum says, for Charles Shultz, May 27th, at auction, to Chesseldine, the lot was sold for $14,050; and the great question is as to the propriety of showing that, in making the sale, the auctioneer sold for William J. Shultz and Lot Pugh. In order to understand that matter more distinctly, *it may be as well to state that Charles Shultz was the original owner of the property; that in 1834 he became embarrassed, and made an assignment of the property in question, with other property, to William J. Shultz and Lot Pugh, for the benefit of his creditors. He made a deed to Shultz and Pugh, of the property in question, in trust to sell and dispose of, to pay off, first, the mortgages on the property; second, to pay certain preferred debts, etc.
    This deed was immediately recorded; the assignees took possession of the property and collected the rents from that time, and applied them, from time to time, in liquidation of the mortgages; and Chesseldine, the defendant, had been occupying the premises, which he purchased, from the time of the assignment to the date of the sale.
    During all this time Charles Shultz had been acting as the agent of the assignees in collecting the rent of Chesseldine, and gave receipt in the name of the assignees.
    Can the assignees, the principals in this’case, take the benefit of a sale of their own property, made in the name of their agent?
    It will hardly be denied that, in ordinary cases, even at law, the principal may sustain an action in his own name, on a written contract, made in the name of an agent. If it should be contended otherwise, the books abound with such cases. Baring and others v. Corrie and another, App. to Long on Sales, 321, shows that in a sale made by plaintiffs’ broker, in his own name, the plaintiffs were entitled to recover, and the purchasers who held, acceptances against the broker, and who expected to have paid for the goods with those acceptances, were not permitted to offset the broker’s acceptances. 2 Barn. & Ald. 137. A sale by a factor, whether he have or have not named his principal at the time of the sale, creates a contract between the owner and the buyer. 7 Mass. 319; 1 Johns. Cas. 488; Long on Sales, 249. A sale by the broker, in the name of the principal, where the sale note was in the name of the principal, was held to be a contract on which the broker could recover. 2 Esp. 493. “If a factor sells goods for a principal, he *may bring an action in the name of the principal; so, a vendor of goods to a factor, for the use of his principal, may maintain an action against the principal. 1 Atk. 248. So, where an agent contracts for his principal, under seal, when he had no authority to sign a sealed certificate, the principal will be liable in assumpsit. 19 Johns. 60. If an agent make a deposit on a treaty, for a purchase conducted by him in his own name, and without disclosing his principal, the latter may, nevertheless, upon the failure of the seller to fulfill the bargain, recover it in his own name. Long on Sales, 257; 1 Camp. N. P. Cas. 337. In the case of Coles v. Trecothick, 9 Ves. Jr. 234, the vendor was held bound to convey, where a clerk of the auctioneer signed an agreement, signed “Evan Phillips for Mr. Smith, agent for the seller.” This agreement was held good under the statuto of frauds, and Coles, the principal, obtained a specific performance, although his name nowhere appeared in the agreement.
    The mere fact of inserting the name of Charles Shultz, who was the agent merely of Pugh & Shultz, can have no greater effect in this than in any other case where the name of the agent only has been used. This is precisely one of those cases where, if the principal was not bound at law by the form of the contract, a court of equity would enforce it against the principal. 3 Taunt. 167; 3 Ves. & Beam. 187; 4 Bing. 722; 4 Taunt. 209. In the State v. Perry, Wright, 663, this court held a contract made with the canal commissioners, was a contract with the state, and could be recovered on as such.
    The next question presented is, whether the memorandum is a sufficient memorandum, in writing, under the statute of frauds and perjuries? Our statute, like most of this class of statutes in other states, requires the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.
    *It is well settled, that any memorandum or note of the contract, showing the important terms thereof, is sufficient, and that it is not necessary both parties should sign the contract; if the party sought to be charged has signed the memorandum, that satisfies the statute. 9 Ves. Jr. 351; 14 Johns. 484; 7 Ves. Jr. 275. Again, in Allen v. Bennet, 3 Taunt. 168, the name of the agent, only, appeared in the memorandum, and yet it was held the principal was bound by it. Bennet’s agent wrote in Allen’s book as follows: “Ordered from H. & G. Bennet, Liverpool, 12 cwt. fine shag tobacco, at 3s. 8d.—2d. per lb. discount-bill in two months, at M. Wright’s, September 11, 1809.” On September 23, the plaintiff wrote to the defendants, in which, after giving reference as to his credit, he added : “ The eight hundred weight of fine shag tobacco I wish immediately forwarded, as I have sold it, and'it is wanted; I likewise want the invoice of the rice, and the other tobacco.” The court decided that, although the name of Bennet’s agent only was signed, Bennet was bound; and although the name of the buyer did not appear in the memorandum, yet, as it did appear in letters written by the Bennets subsequently, it was sufficient. And the court say: “I see no objection why it should not be made out what was the name of the buyer, by the writing of these very defendants. It is in writing, and is evidently connected with the contract, that no doubt it may be coupled with the order in the book ; and a valid contract may be established by the evidence of several writings, as we often see it at nisi prius.”
    In Phillimore et al. v. Barry and another, 1 Campbell, 513, the defendants had written to Messrs. Fector & Minet, to buy thirteen puncheons of rum,' at a contemplated auction ; and at the auction, the auctioneer knocked off several lots to Mr. John Minet Fector, one of the firm of Fector & Minet, and put down the initials, J. M. F.; meaning John Minet Fector. About two weeks after, the' defendants wrote to Fector & Minet, approving the purchase. It. was held, although the purchase was in the name of the agent (without designating him to be an agent), the defendants, the principals, were liable. *“ The initials of the defendant’s agent, written by the auctioneer,.coupled with the letter recognizing the sale, was held to constitute a sufficient memorandum, in writing,, to satisfy the statute of frauds.”
    In Western v. Russel, 3 Vesey & Beames, 187, the court held, the letter, offering the land at a specified price, together with another letter from the same person, expressing himself thus — “I have just received yours, and am glad you have determined to purchase the watering farm, as I think it will be an accommodation to you”- contained a sufficient memorandum; and that, although no letter of acceptance could be proved, it was evident; from the last letter, an acceptance had been made, and that the letters, altogether, sufficiently showed the existence of a contract in writing.
    In Soames v. Spencer, 2 Dow. & Ry. 32, it appears Soames and one Tennant were joint owners of a quantity of oil. Soames, without any authority from Tennant, sold the oil in his own name; but Tennant, afterward (having first refused), confirmed or assented to the sale. It was held that, although the written contract did not name Tennant, and, therefore, did not bind him, yet his subsequent approval was tantamount to his previous authority.
    In 4 Bingham, 722, it was held that, where a person made sale of the property of another without authority, and entered into a memorandum, the owner might, by parol, subsequently approve of, and ratify, the contract; and that such subsequent ratification was equal to, and even more satisfactory, than previous authority because the owner knew what he was ratifying.
    In White v. Proctor, 4 Taunton, 203, the auctioneer put down the name of Mr. Stokes as the purchaser. The defendant’s name was not in the memorandum; but he was held liable, inasmuch as Stokes was his agent.
    The principles to be extracted, then, from all these cases, are these:
    The memorandum, required by the statute, need only be signed by the party to be charged, or by his agent, and that the auctioneer is the agent of buyer and seller.
    *That a memorandum, in the name of the agent of the buyer or seller., is equally binding on the principal as though it was in the name of the principal, provided the agent was authorized by the principal.
    That this authority may be conferred previous to the sale, or by ratification or recognition after the sale.
    That a written memorandum in the name of one party, where the other is not named, will be made available by a recognition of the contract .by the other party, by letter or paper referring to the sale.
    
      As to the mortgage incumbrances, it is shown they were well known to the bidders; at the time of the purchase the auctioneer mentioned the existence of these mortgages, and the fact that they were hold by the banks mentioned as an inducement to purchasers, because he expected the purchasers might obtain further time from the banks.
    It is well settled that the existence of incumbrances at the time of purchase is no objection to a specific performance, if they were proclaimed at the sale, or their existence was known to the purchaser. 5 Ves. Jr. 818. So a party will be held to have waived his objections to a title on the ground of an incumbrance, if he treats for the purchase after knowledge of the incumbrance. 3 Meriv. Ch. 64.
    Applying these decisions to the present case, there can be no pretense for setting up the mortgage incumbrances as an objection to the specific performance of the contract: First, because the existence of these mortgages was well known at the time of sale; and, secondly, because if not known then, it is clear they were known immediately'after the sale, and no objection taken on that account; but, on the contrary, everything was satisfactory except the pending of the creditors’s bill to set aside the deed of assignment, and it was agreed to let the matter rest until that cause was decided, and, if the title of the assignees should be sustained, the title would be satisfactory.
    *Edward Woodruri’, for defendant,
    relied upon the following positions:
    1. The proof does not sustain the allegations of the bill.
    2. The case is within the statute of frauds.
    
    3. That by the terms of the sale the defendant is not bound by his purchase, the title not being.clear and indisputable at the time of the sale,\nor within ten days, nor oven at this time.
    4. That the circumstances of the sale wore such as to show unfairness toward the purchasers — a suppression of the truth — in not disclosing incumbrances and litigation, to which said premises were, and still are, subject.
    5. That parol proof can not be introduced by the plaintiff to show anything which transpired subsequent to the sale, for the purpose of creating a now liability on the defendant, not warranted by the original agreement.
    6. That there is no mutuality of obligation on the complainant, inasmuch as the defendant could not have compelled the complainants to a specific performance. ,
    7. That if any deed was tendered to the defendant, it was not in conformity with the alleged terms of sale, being nothing more than a quitclaim; nor is there any certificate of the official character of the officer before whom the same was acknowledged.
    It will be recollected that the complainants alleged that the contract was made by defendant with them ; the proof, to wit, the memorandum, shows that O. Shultz was the person, if any one could claim the benefit of said memorandum, as his name alone is mentioned.
    But it is sought to show by parol that the contract was made with the complainants.
    “Parol evidence, which substantially varies a written agreement, is inadmissible in equity as well as at law.” Sug. Tend. 89, 95.
    “Several papers, not referring to each other, can not be connected by parol proof.” 1 Johns. Ch. 273; 2 Stark. Ev. *350, and note 1. “A memorandum of the sale of lands, besides being signed by the party, must contain the essential terms of the contract, expressed with such clearness and certainty that they may be understood from the writings themselves, without the necessity of parol proof; and a written or printed advertisement, containing the conditions of sale, exhibited and read to the purchasers, will not supply the defect.” 16 Wend. 28.
    If part performance is relied on, where is the proof of it?
    It will bo recollected that Chesseldine was in possession, as lessee, at the time of the alleged sale.
    “If the vendee be a tenant in possession, under the vendor, the case is not taken out of the statute, for his possession is properly referable to his tenancy, and not to the contract.” 2 Story’s Eq. 68.
    But it is said that Chesseldine agreed to pay for the expense of removing a wall. The testimony is that he would, if he completed the purchase (see paper attached to S. P. Chase’s deposition) ; and that he agreed to arbitrate the deficiency in the quantity of the land. These acts being merely preliminary, are not sufficient to take the case out of the statute.
    “Delivering an abstract; giving directions for conveyances; going to view the estate; fixing upon appraisers to value stock; 
      
      making valuations, etc., will not take the ease out of the statute.” Sug. Tend. 72, 73; 2 Story’s Eq. 68.
    “ The purchaser, to be bound, must know the objections to the title at the time he purchases.” Sug. Tend. 254; 7 Tes. Jr. 265.
    “ The title must' be like Caesar’s wife, above suspicion.” Sugden,210.
    “ It must be clear of all suspicion; no man is obliged to buy a law suit.” Sugden, 211; Butler v. Hear, 1 Des. 381; Kelly v. Bradford, 3 Bibb, 317.
    “If no incumbrance be communicated to the purchaser, or known to him to exist, he must suppose himself to purchase an unincumbered estate.”
    “ His objections to taking it need not be confined to cases of ^doubtful title, but may be extended to incumbrances of every description, which may embarrass him in the full enjoyment of his purchase.” Garrett v. Macon, Call, 303.
    “ It must be shown, by the party asking for a specific performance, that he has been in no default, in not having performed the agreement; and that ho has taken all proper steps toward performance on his part.” Story’s Eq. 81.
    In all cases cited by the counsel for complainants, to show that a sale made in the name of an agent may be claimed by the principal, although the name of the principal was not disclosed, it will be found that the sales were avowedly made by the vendor as agent.
    The complainants have also acted carelessly and negligently in the premises, in taking no steps to rid the premises of the incumbrances ; and a space of nearly six months elapsed from the time of said sale until a deed was said to have been tendered, the circumstances of the property, in point of value, and other respects, materially changing.
    “ If the character and condition of the property, to which the contract is attached, have been so altered that the terms and restrictions of it are no longer applicable to the state of things, in such cases courts of equity will not grant any relief, but leave the parties to their remedies at law. Courts of equity will not interfere to decree a specific performance, except in cases where it would be strictly equitable to make such a decree.” 2 Story’s Eq. 53.
    
      The learned commentator takes a very rational distinction between the case of a plaintiff seeking a specific performance in equity, and the case of a defendant resisting such performance; that the specific execution of a contract in equity is matter, not of absolute right in the party, but of sound discretion in the court. Hence, it requires a much less strength of case to resist a bill to perform, than to enforce a specific performance. An agreement, to be entitled to be carried into specific performance, ought to be certain, fair, and just in all its parts.” 2 Story’s Eq. 79; 6 Johns. Ch. 222 ; Sugden, 125-135; 3 Cowen, 435.
    *All the peculiar circumstances may be shown by the defendants, and greater latitude is given for this purpose, by the introduction of parol proof, than is allowed the complainant. 2 Story’s Eq. 80; Sugden, 160.
    
      “ Delay on the part of the vendor, is a good ground to refuse a specific performance.” 7 Ohio, 92; 2 Story’s Eq. 87, and note.
    With respect to the attempt on the part of complainants to prove a tender of a deed, even if they have succeeded in proving it, it amounts to nothing. A tender made by a person who is unable to perform his contract, avails him nothing ; it is an empty act. 7 Ohio, 88.
    The deed which it is said was tendered to the defendant, was only a quitclaim. Now, Wright, the auctioneer, and two or three other witnesses, say part of the terms of sale was that a good and clear title would be made within ten days, etc.
    “ A contract to make a good and sufficient deed is for a conveyance in fee simple, with covenant of warranty.
    
    “ A deed without warranty does not fulfill the contract.” Wright, 644; 2 Johns. Ch. 613; 2 Greenleaf, 22; Gilchris v. Buie, 1 Dev. & Batt. 356.
    Mr. Fox for the plaintiff, in reply:
    Objections are made to a specific performance of the contract in this case:
    1. Because the proof does not sustain the allegations of the bill The answer is, the contract, if valid, exactly agrees with that stated in the bill. ' «
    2. Because the case is within the statute of frauds. I admit the case to be within the statute of frauds and perjuries.
    If we take these two objections together, they amount to this: The contract, in proof, varies from the one set forth, because the name of Charles Shultz appears in it; and the complainants are prohibited from showing by parol that they authorized the sale, and, therefore, the contract is void by the statute. Mr. Woodruff claims that, to show this sale to have *been made for the complainants by parol, is to vary the written contract. He refers to Sugden, 89, 95; but when we come to look into the authority cited, we find it only shows that another proposition contended for, can not be sustained, viz: that the verbal declarations of the auctioneer in the auction room, contrary to the printed conditions of sale, are inadmissible.
    Mr. Woodruff is mistaken in supposing that in alt the cases cited by myself, to show that a sale made in the name of an agent may be claimed by the principal, although the name of the principal was not disclosed, the sales were avowedly made by the vendor, as agent. So far from this being the case, in the case of Soames v. Spencer, 1 Dow. & Ry. 32, Soames sold the oil in his own name, without any authority, even from Tennant. The case in 4 Bingham, 722, is to the same effect. In White v. Proctor, 4 Campbell, 210, Mr. Stokes was put down as the name of the purchaser. Stokes was, in fact, the agent of Proctor. But the name of Mr. Stokes, only, was put down as purchaser, and not as agent for the purchaser; and Proctor was held liable on the contract made in the name of Stokes. So in the case of 3 Taunt. 168, and in 3 Ves. & Beames, 187, the names of buyer and seller were not on the same paper, but the contract was made out by different letters.
    In Hicks v. Hankin, 4 Espinasse, 114, the contract was made in the name of George Hankin, although it was, in fact, made by Joseph Hankin, who was acting as agent for George.
    Again, suppose it were as Mr. Woodruff supposes — that the name of the person making the sale was mentioned as agent — would this make the contract any more certain, without the aid of parol testimony? To sign the name merely as agent, without saying for whom the party was acting as agent, would still require the aid of parol testimony to show who was the principal.
    But the law is unquestionably settled that the mere concealing the name of the principal, whether buyer or seller, will not prevent the principal being made liable when discovered. “ Tho buyer or seller may resort to the principafwhen *discovered, although his name were not disclosed at the time of the contract." Patterson v. Gaudaseine, 15 East, 62.
    
      So, where two are jointly interested in property, and one only sells it, without any authority from the other, yet the latter may, by subsequent ratification, enforce the purchaser to comply with his contract. Soames v. Spencer, 1 Dow. & Ry. 32. Where a factor sells goods in his own name, and the purchaser does not know the fact that any other person is owner, yet if, before payment, the purchaser receives notice from the principal, and after that pays the broker, the principal may recover (Ross Vend. 147, 148,) although the statute of frauds, in regard to contracts concerning personalty, requires the agreement to be signed by both parties.
    Where the agent purchases in his own name, the fact of agency may be proved, so as to charge the principal. Sug. 121; 1 Moore, 46; Russ. & M. 53; Story’s Agency, 28; 5 Wheat. 671; Burton on Real Prop. 483.
    Again, I insist that it is not necessary the complainants should show they had previously authorized the sale; because the name of the purchaser being in writing, and signed by his agent, the' subsequent approbation of the sale is just as good as previous authority. In the case before alluded to, 4 Bing. 722, Justice Best says: “ It has been argued that the subsequent adoption of the contract by Dunn, will not take the case out of the operation of the statute of frauds; and it has been insisted that the agent should have his authority at the time the contract is entered into. If such had been the intention of the legislature, it would have been expressed more clearly; but the statute only requires some note or memorandum, in writing, to be signed by the party to be charged, or his agent thereunto lawfully authorized; leaving it to the rules of the common law as to the mode in which the agent is to receive his authority. Now, in all other cases, a subsequent sanction is considered the same thing in effect as an assent at the time; and, in my opinion, the subsequent sanction of a contract, signed by an agent, takes it out of the operation of the statute more satisfactorily than authority beforehand.”
    
    *As to the objection of uncertainty, it is futile. If we look at the memorandum of the auctioneer, to which is attached the copy of the printed advertisement, it will be seen that it is the property situate at the southeast corner of Main and Lower Market streets; and it is the same property occupied by Chesseldine, etc. There is no difficulty in identifying the property, which is the only object of a description.
    
      As to the want of mutuality, there is no weight in that objection ; for it is well settled that, if the contract is signed by the party sought to be charged, it is sufficient. The statute does not require that the contract should be signed by both parties. Sug. Tend. 43, 45. Even a letter directing a third person to draw an agreement, mentioning the terms, is sufficient. Sug. 45, 50. But if such was the requirement of the statute, the auctioneer is agent, as well for the seller as the buyer, and, of course, his act would bind the vendors, as well as the vendee. 4 Johns. Ch. 666.
    As to the tender of the deed, 1 consider it immaterial. It is evident that, at that time, these purchasers refused to receive it. But as the tender is said to be denied in the answer, and only proved by one witness, it may be as well to remark that the bill does not call for a discovery ; the answer, therefore, is not made evidence by complainant, and it can not be made so by the defendant.
    It is said, however, the deed is only a quitclaim deed, and that the purchaser at an auction sale is entitled to a warranty deed. Whether a purchaser is entitled to a warranty deed depends upon the contract of sale. Now, there is no stipulation for a warranty deed ; and, I take it, a court of chancery will not decree a specific performance, even with a warranty deed, unless the title is good. So far, therefore, as the form of the deed is concerned, it is immaterial. If this court think the party entitled to a warranty deed, they can now decree one to be made. If a warranty deed had been tendered, it would avail nothing against a bad title. Was this a bad title at any time ? The counsel for defendant speak of this as an admitted bad title. Now, it is not pretended there was any defect at *all, save and except some creditors had seen proper to file a bill, and, without any proof' whatever, charge the trust deed to be fraudulent. But I submit to the court, whether that circumstance is to be considered as any evidence of a defective title. If I understand what is such a defective .title as to prevent a specific performance, it is a title where there is a link wanting in the chain, or where some manifest equitable title is existing, and this must be proved to the court. “ It is not sufficient to show that the title has been deemed insufficient by conveyancers, but he must prove the title bad.” Sug. 157. It is only where there is a substantial defect the defense can avail. 2 Story Eq. 89. And, although a vendor is not bound to take a doubtful title, he will not be permitted to object to a title on a mere probability of a defect. Sug. 214.
    As to the question of the warranty deed, I take this to be the law : A covenant, to give a good and sufficient deed for the promises, is complied with by giving a good and formal deed, without covenants of warranty. Such is declared to be the law in 16 Johns. 269; 12 Ib. 442.
   Wood, J.

There has been a mass of testimony taken in this case, too voluminous to be recapitulated at length, and will only bo referred to in general term3 in the disposition of the case. In this class of cases it is well settled that the auctioneer is the agent of both parties, and that sales of this description must be conducted in the utmost good faith; and the bidder, as a general rule, has the right to rely on the printed conditions, or verbal representations made by the auctioneer; and if they are not substantially true, it is a fraud upon the purchaser, and he is not bound by his bid. It is also true that a court of equity looks beyond the letter, and inquires after the intentions of the parties. Charles Shultz was, at one time, the owner of this property, and had assigned it to the complainants for the benefit of his creditors. At this time of the sale, and before and after he purchased, Ohesseldine occupied it under a lease from the complainants, as assignees, and paid the rents occasionally to Charles Shullz. He must, ^therefore, have known to whom it belonged, and that Charles Shultz was acting as the agent of the complainants in the management of the premises; and looking, then, at the transaction in its real light, equity would regard the contract as between the complainants and defendant, notwithstanding tho auctioneer erroneously made Charles Shultz a party. The correction of mistakes is one of the peculiar jurisdictions of a court of equity. It appears to us, also, the memorandum of the sale, signed by the defendant, through the agency of the auctioneer, if we regard the complainants as the real parties, takes the case out of the operation of the statute of frauds.

It is certain the property was incumbered at the time of the sale by the mortgages referred to, and until the July term of the superior court succeeding, and that a suit was pending in favor of certain creditors of Charles Shultz against the complainants, as his assignees, to set aside the assignment of this property; but at the July term, by consent of the Bank of the United States, the creditors and assignees, such proceedings were had that the title was confirmed in the assignees, and the avails of the property disposed of'by the decree, leaving it perfectly in the power of the assignees to make a good title. It is very clear if Chessoldino had chosen to abandon the purchase, at any time after the ten days had elapsed, in which the title was to be made, his right to do so could not have been questioned. But if he chose, on his part, to consider the contract open, and to waive the limitation, within which the complainants were to convey, and until it was in their power, equity will estop him from afterward setting up their default as a defense to the suit.

If he treated the bargain as open and subsisting until, the bill was filed, and the complainants were able to make a good title at the hearing, performance, on the part of the defendant, will be decreed. 2 P. Wms. 630; 1 Atk. 12; 3 Cow. 445, 555. It is also certain if the printed conditions of the sale, or the representations made, are not true, the purchaser may waive his right to abandon the contract, and he will, in that event, be compelled to perform it. Does not the defendant ^occupy this ground? Griffin Taylor swears that the defendant offered to sell him the property three or four weeks after the purchase. Fox says before he commenced this suit, which was on November 25, 1839, ho had several conversations with Ohesseldine. He at first expressed a willingness to take the property, but at last objected to the title, and in October, or early in November, deponent tendered him the deed of the complainants. It is proved by Mr. Chase that in June or July the defendant agreed to pay for one-half of a partition wall, to separate the premises in controversy from those of the deponent, in the event of his completing tho purchase. There are other facts also in proof, which altogether lead us to the conclusion that the defendant intended to take the property until about the time when the deed was tendered, in October or November, long after the title was complete in the assignees, and the cause of his refusal was then, probably, not so much from any objection to the title as the depreciation in the value of real estate, which is shown to have been at least twenty-five _per cent, from May till October, 1839.

Another ground of defense is, that the complainants’ deed was but a quitclaim, which the defendant was not obliged to receive. Whether this was a compliance with the contract, on the part of the complainants, must depend on its terms. The contract was for a good title. If, then, the assignees had the title, it would pass to the defendant by a quitclaim, as well as by a conveyance with covenants of warranty. The form of the conveyance, under such a contract, can not be material. The court will look to see if a good title is conveyed, and if not, whatever may be the form, the vendee will not be decreed to execute the contract, on his part. This deed, however, does contain covenants of warranty, by the assignees, against their own acts; but without even these covenants, a majority of the court would consider this conveyance sufficient to satisfy the terms of the sale. Decree for complainants.  