
    Trustees of the Episcopal Church of Macon vs. Leroy M. Wiley and J. B. Rowland.
    Heard before Chancellor J. Johnston, Charleston, January. Term, 1836.
    The contract in this case, relied on by the complainants, was made in Georgia, between citizens of that State, concerning a lot in the town of Macon. The lot was put up for sale on account of the complainants, by T. P Bond, an auctioneer ; and was knocked off to one Jesse Smith, as the highest bidder, at the price of $2,460. But doubting the responsibility of Smith, the auctioneer required another name, threatening to re-sell, when J. B. Rowland, one of the defendants, came forward and assumed the purchase, at the price oí $2,400. The auctioneer then entered the name of Rowland, as the purchaser, with a pencil, upon a loose slip of pa. per; and after returning to his office, entered the sale in his sales book.
    Rowland having referred the auctioneer to the defendant Wiley —Wiley enters into the treaty and arrangements, whether indi, vidually, or as one of the concern of Wiley, Baxter and Car. ter, is a question of testimony. Upon a defect in the title being discovered, it is agreed between the parties, that the fulfilment of the contract should be suspended until the legislature of Geor. gia, shall make good the title. in the mean time, the lot depreciates in value, in consequence of which,'the trustees desire to make Wiley take the lot, and for the same reason, Wiley finally declines taking it. Wiley removes to South Carolina, and the bill is filed against him here, to compel a specific performance of th» contract.
    DECREE. — The plaintiffs aim at Wiley, as the only solvent de= fendant.
    It would be sufficient for the plaintiffs to have made out a eon. tract with Rowland, either as the agent of Wiley, or as jointly in. terested with him in the purchase; either would give them a de* cree against Wiley. If Rowland was Wiley’s agent merely, then whatever would bind the agent, would enure to the plaintiffs, as against the principal. If, however, Rowland was jointly interested with Wiley, they are both bound, and although there may have been other persons known lo theso two, who also are interested in the purchase, the plaintiffs are not to be turned round to them, nor obliged to resort to others, than those whose names were disclosed to them, wheu the sale ivas made. Without, therefore, depending upon the evidence, of a direct contract with Wiley, if Rowland made a binding contract, that is enough for the plaintiffs^ provided Rowland was any way concerned with Wiley in the.pur. chase, either as agent or a partner. That there was the connection, of either agency, or joint interest between them, the evidence leaves no doubt. That Rowland made a valid contract, appears t® me equally plain. For admitting that the auctioneer’* memoraa* dum does not take the case out ot the statute of frauds, if of force in Georgia, his answer overrules his plea. Both have answered. Wiley admits the sale, the terms, the thing sold, and to whom the auctioneer knocked down, and leaves it only to be proved, that the bidder was authorized, and by whom ; and the authority of the bidder need not be in writing.
    Two things, only in the case have created any difficulty in my mind. The first was the case of- Bacon vs. Roach, the doctrine of which, i have always, although joined by few in that opinion, approved. But that has recently been overruled by the Appeal Court. The other related to the power of this court, over the whole contract The land sold is in Georgia ; the plainiiffs are not entitled toa decree, but upon making titles ; and this court has not power to compel them. But 1 can give them a decree dependent upon their making titles.
    It was, indeed, contended for the defendants, that this court does not possess jurisdiction over any contract, into which, land lying beyond the limits of the State, at all enters. But if the thing which is required to be done, is that which the defendant can do in this State, and there is the obligation of law upon him to do it, the cases leave no doubt, that this court, acting on the person, and not in rem, is not only competent, but bound, to make him fulfil his obligations.
    Arglasse vs. Muschamp, l>Vernon, 74, decided by Lord Nottingham, iu 1682, is an example. Muschamp, by a fraud in England, obtained a rent charge on the Earl of Arglasse, in Ireland, and on a bill brought in England, where Muschamp was found to be re-iieved against the grant, pleaded to the jurisdiction. The plea was overruled, on the ground, that the court acts in personam, and a release of the grant decreed. Here the fraud was perpetrated in. England ; but that makes no difference, as the subsequent cases shew. For, although the fraud gave the jurisdiction, it was never supposed but once, and that in the next case I shall mention, that there was a local venue as to fraud.
    In Kildare vs. Eustace, 1 Vernon, 405, tried in 1680, the bill was to be rblieved touching trusts created in Ireland, of lands in that kingdom. Lord Chancellor Jeffries doubted his jurisdiction, because the trusts were not created in Englind, and thought that it was the circumstance of the fraud !>eing committed in England, which gave jurisdiction in Arglasse vs. Muschamp. But he was so clearly wrong, that when subsequently, the same point was argued before himself. Lord Chief Justice Beddingfield, and Lord Chief Baron Atkins, not only were the judges of opinion, that the jurisdiction was complete, but the defendant’s counsel gave up the point.
    Roberdeau vs. Rous, 1 Atk. 543, brought before Lord Hardwicke, in 1738, was the bill of an infant in England, against the defendant also in England, to compel the delivery of possession of lands in St. Christophers, and for an account of the rents and profits ; to which a demurrer was put in. The court held, that a plea was the proper forra of defence, and therefore overruled the demurrer, but entered into a series of observations, shewing its clear conviction, that whenever the court can effectually act in personam, it lias jurisdiction.
    Foster vs. Sassall, 3 Atk. 587, which came also before Lord Hardwicke, ia 174-7, turned upon the informality of the ple.i put in, but his lordship, while he overruled the plea for want of aver-ments, took occasion again to repeat the doctrine, that the court must act, so far as it can act, in personam. The case before him, was, among other things, for an account of estates in Jamaica, the executor being in England.
    Ponn vs. Baltimore, 1 Ves. 444, was decided by Lord Hard, wicke, in 1750, after much consideration, aided by a powerful and sifting argument of the case, the weight of which so impressed him, that he declared it was worthy the consideration of a Roman Senate. It was a bill against Lord Baltimore, residing in England, to compel the specific execution of an agreement settling the boundaries between Pennsylvania and Maryland. The court decreed the execution, disclaiming all power to act in rent, but only in personam.
    In Cranston vs. Johnston, 3 Ves. jr. 170, which came before the master of the rolls, in 1796, the defendant had, while pretending to treat with the plaintiff for ¡¿payment of a demand he held on him, clandestinely obtained a judgment in St. Christophers, against the plaintiff, who was not resident there, under which, he, with much secrecy and expedition, sold and purchased a rent charge in reversion, which the plaintiff held on property in that colony. The master of the rolls declared, that he must forget the name of the court in which he sat, before he could hesitate to relieve in such a case; asserted the jurisdiction, when it could operate in perso-nam, and decreed a re-eonveyance, deducting the defendant’s debt and expenses.
    Here is a steady current of authorities, to which twice as many might be added, all to the same effect. I say to the same effect, for although some of the judges did mix up with, their reasons in the colonial cases, a notion that the jurisdiction of the court was increased by the supremacy of England, yet it is plain, that that consideration was not at all necessary in their decisions, nor formed the ground ef them.
    The case of Pike vs. Hoare, Ambler 428, tried in 1763, and relied on by defendant’s solicitor, is not all calculated to shake the weight of these authorities. The bill was to have au issue of de-msavit vel non, ordered, and tried in England, of a will made there, but charging the testator’s debts on lands in Pennsylvania. The heir who filed the bill, and contested the will, had withdrawn all opposition to probate in the Ecclesiastical Court, and had, without opposing it, suffered a decree to perpetuate testimony to pass ; in consequence of which, the executors and devisees had paid out above 5000 pounds, towards the debts. Lord Henley, who heard the case, although he confesses, he built his opinion materially on the circumstance, that the land lay abroad — yet, unhesitatingly declared, that the plaintiff’? conduct was such, that if the land was íq England, he would not have directed the issue ; that he had completely forfeited his equity.
    I feel, therefore, warranted in decreeing for the plaintiffs upon their making a conveyance ; although'I would not be prepared to go the length of those decisions which hold that a defendant within the jurisdiction, may be compelled to make conveyances, or deliver possession of lands in foreign parts. That seems a very hard doctrine ; and if the plaintiffs were in this State, and the bill was against them to compel them to convey, I would hesitate much. I think, I would not sustain such a bill. But it stops very far short Of that, to give them a decree upon condition of doing that voluntarily, which I would not compel them to do ; leaving them to take or refuse the decree at their option.
    Both Rowland and Wiley are before the court. One of them lives in this State — both have answered.
    But to return to a point upon which I remarked at the outset. 1 Said it was immaterial to the plaintiffs, whether Rowland contracted as agent, or partner of Wiley. And so it is. But it is ma-' ferial to Rowland; for if he acted as agent merely, the whole contract should be thrown, as between him and Wiley, on Wiley. Whereas, if they were jointly interested, tney are both and each, liable to the plaintiffs, and the conveyance should be made to them jointly, leaving them to settle the matter between themselves. But Rowland’s answer admits that what, was done, was done towards a joint purchase, and he may be allowed to speak for himself When he thereby takes a purchase oil his own shoulders. So that, ■the court will leave it to the defendants to determine, whether the decree shall be that Wiley take the titles, and pay the money as principal of Rowland, or whether the conveyance shall be to them jointly, and that both shall be liable for the money. Whatever the determination may be, it is not intended that they should be thereby deprived of the right of appeal. The decree in either case will be, that the titles be deposited with the register and approved by the master, before payment of the price, and that within a given time. When their determination is made, let an order be proposed.
    J. JOHNSTON,
    Filed 4th January, 1836.
    The decree dated the 4th inst., having left to the defendants, the choice oí taking a title jointly or to the said Leroy M. Wiley alone; and no choice being made, it is ordered and decreed, that upon the complainants executing and delivering to the defendants, a deed for the lot No. 5, in square 41, in the town of Macon, to be approved by the commissioner of this court, and tendered to the defendants, or to their solicitor in this cause, within two months from this date, the defendauts do pay to the complainants the sum of ($2,400,) two thousand four hundred dollars, with interest on ($1,600,) sixteen hundred dollars, from the (17) seventeenth clay of January, (1832,) eighteen hundred and thirty-two,.: and on ($800,) eight hundred dollars, from the (17) seventeenth day of July, in the year (1832,) eighteen hundred and thirty-two, and the costs of this suit.
    J. JOHNSTON.
    January 18, 1836.
    The defendant appeals from the decree, made in the case, upon the tollowi g grounds:—
    1. Because his honor decreed, that the plea of the statute of •frauds, was overruled by the answer, and therefore could not be maintained.
    2. Because his honor decreed, that the court possessed jurisdiction in the case, although the contract was proved to have been made in another State, between the citizens of another State, concerning lands lying in another State.
    3. Because if the contract, in consequence of the removal of the defendant into this State, is to be considered as having been made between a citizen of this State, and citizens of another State, the suit ought to have been instituted in the courts oí the United States.
    4. Because his honor decreed a specific performance against the defendant, although the testimony and answers proved, that he was interested in the contract, only as one of the mercantile firm OÍ Wiley, Baxter and Carter.
    5. Because his honor decreed, that although the remedy was not mutual, and the court held no power to enforce performance of the contract, on the part of the complainants who were without the ju. risdictiou of the court, a specific performance should be decreed against the defendant.
    6. Because time is material in enforcing a contract, by a Court of Chancery, when the circumstances of the parties are changed, and the property in this case having depreciated during the period of delay, on the part of the complainants, a specific performance of the contract ought not to be decreed against the defendant.
   Chancellor Harper

delivered the opinion of the court.

The second and sixth grounds of the motion, which relate to the points chiefly considered by the chancellor below, have been abandoned.

With respect to the first ground, we do not think it necessary to determine, whether the answer overrules the plea; because we are of opinion, that there was a sufficient memorandum in writing, to take the agreement out of the statute of frauds, the auctioneer being regarded as the agent of both parties. It is agreed, with re-gpeetto goods sold at auction, he must be so regarded ; but some of the earlier cases, determined that this could not be extended to lands. Stansfield vs. Johnson, 1 Esp. Ni. Pri. 101; Buckmaster vs. Harrop, 7 Ves. 341. But Lord Eldon expressed a different ©pinion, in Coles vs. Trecothick, 9 Ves. 234, which has been fob lowed ever since — by Lord Erskine in the same case, of Buckmaster vs. Harrop, 18 Ves. 456, and by Sir Wm. Grant, in Kinneys vs. Proctor, 3 Ves. & B. 57. He states that he should himself have been ol a different opinion, but was governed'by the de« cisions of the Court of Common Pleas, in Emerson vs. Hiles, 2 Taunt. 38, and White vs. Proctor, 4 Taunt. 209, to the same effect with the equity cases cited. The same thing has been decided in New York, M‘Comb vs. Wright, 4 Johns. Ch. Ca. 659. I myself expressed a different opinion, in a case decided by me as chancellor ; but upon its being carried up to the Court of Appeals, that court.overruled my opinion ; so that the question may be regarded as settled.

Then an objection was taken to the sufficiency of the memorandum, as not setting forth sufficiently the description of thejpa¡3#í£r and the terms of sale. 1 do not understand the objectio^jo íq|^ti|r' to the entry in the auctioneer’s book, but to the pencil memorandum made on the land at die moment of sale, which it was th|wgj^’5nj»)i stituted the trüe memorandum. But this is contrary to |pe universal understanding. The entry in the auctioneer’s book was^rnaffjjg as early as practicable. If a memorandum of sales be maite by a shopkeeper in pencil, or on a slate, and afterwards entered uFt®** day book, the latter is always regarded as the original entry.

Then it was argued, that having contracted and dealt with Rowland, the complainants have no recourse against W iley. But it is perfectly weli settled that if a party contracts with an agent, not knowing him to be agent, and afterwards discovers the principal, he may afterwards enforce the contract against the principal. See Paterson vs. Gandasequi, 15 East 68, and Rawlton vs. Hodges, 4 Taunt. 576, &c. There is a difference if the party contracts with an agent, knowing of the principal. There, if after he knows the principal, he continues to deal exclusively with the agent, and gives the credit to him, the principal will be discharged. Addison vs. Gandasequi, 4 Taunt. 576. Here, however, the complainants dealt with the principal from the lime they discovered him. The case' of Kinneys vs, Proctor, seems to have been in this, respect, precisely like the present. The auctioneer entered the sale as made to the agent, and the contract was enforced against the principal. It is clear, that the auctioneer’s authority need not be in writing. See Lord Eldon in Coles vs. Trecothick.

The third ground was not urged in argument.

The fourth ground involves matter^ depending on testimony, with respect to which, we have no reason to distrust the chancellors conclusion.

A. M. Smith, for motion.

Petigru, contra.

Filed 21st March, 1837.

The fifth ground was not urged, ation. and seems to be without found»

The decree is affirmed.

WILLIAM HARPER.

We concur,

DAVID JOHNSON,

J. JOHNSTON,  