
    Silas Anderson v. Burwell Chick.
    The rule, that an auctioneer must be considered the agent of both purchaser and vendor, and his entry a sufficient memorandum, within ‘the provisions of the statute of fiauds, applies to sales of lands, as well as to sales of personal property. But it extends only, to sales made by persons exercising the public business of an auctioneer, and will not apply to a sale made by the mere private agents of the vendor.
    Part performance to take a case out of the statute of frauds, must be such as operates a fraud, or hardship, on the party claiming performance, if the agreement is not enforced; and the act of part performance must, moreover, appear to have been in pursuance of the agreement, and in execution of it. Payment by the vendee, of an execution against the vendor, will not intitle the latter to, insist upon specific performance; for if intended as a payment on account of the purchase money, it operates no hardship on the vendor, if the agreement is not enforced. And although delivering y and taking possession is a sufficient performance; yet the vendee’s renting ; a part of the land, as agent of the vendor, is not such a part performance as will intitle the vendor to specific performance, as it does not purport to be in pursuance and execution of the agreement. The mere declarations of the vendee, that he had purchased the land, and was the owner, unaccompanied by any act in pursuance of them, want all the essential attributes of part performance. They are merely parol evidence of the agreement.
    At Union, June, 1829.
    Harper, Ch. This was a bill to compel specific performance of an agreement for the purchase of land. The bill alleges that the land was sold at public auction, and bid off by the defendant, at the price of two thousand dollars. The answer denies the agreement. It admits that the land was bid off by defendant, but states that it was only as the agent, or bidder, of complainant: and the statute of frauds is pleaded. It appears that the complainant, for the purpose of selling his goods and land, offered them at public outcry, at his own house, on the land in dispute. There were written terms of sale, but what advertisemenffwas made of them, does not appear. A person who was present, acted as clerk, and set down in writing the various sales; and, among other things, made the following memorandum : “ Dr. B. Chick, 1 tract of land, $2,000.” Complainant had' no other land than that in dispute.
    The first question is, whether this was a sufficient memorandum, in writing, signed by the party, or person by him lawfully authorized, to satisfy the requisitions of the statute. The case of Gordon v. Sims, 2 M‘C. Ch. 163, was relied on to show, that in sales at auction, the auctioneer must be considered the agent of both parties, and his entry a sufficient memorandum. It is said, in that case, to be settled, that the auctioneer is the agent of both parties; but that was not the point involved in the case, and perhaps I ought only to regard it as the dictum of the judge who delivered the opinion of the Court. That was the case of a sale by the commissioner of the Court of Equity, which has been always held to stand on a different footing. The point was first decided by Lord Hardwicke, in the case of Attorney General v. Day, 1 Ves. 221. He puts it expressly on the ground, that a judicial sale, under a decree, is not within the statute : and this is recognized by Sir William Grant, in Blagden v. Bradbear, 12 Ves. 472. It seems sufficiently obvious, that such a sale is not within the mischief contemplated by the statute. The officer of the Court is indifferent between the parties ; he is responsible to the Court for the fairness and regularity of his proceedings; and perhaps no transaction can be less exposed to the danger of fraud, or perjury, than such a sale. The officer is under no temptation to be accessary to either, but, on the contrary, is restrained by the strongest considerations. But it is in vain to say that the auctioneer is thus indifferent. He is selected and employed by the vendor, who reposes confidence in him; and as observed in the argument of Blagden v. Bradbear, “ how can it be contended that the auctioneer is the agent of the purchaser ? What confidence, what connection, is there between them?”
    I shall not venture to express an opinion of my own, on a subject on which eminent judges have differed; and certainly I should have much hesitation in differing from the judge who delivered the opinion of the court in Gordon v, Sims. I shall, however, with much deference, throw out some suggestions, which may have a bearing on the question, if the point should again arise.
    
      On the.footing of authority, tho argument seems to stand thus : La g¡mon v_ Metivier, or Motivos, Bull. N. P. 280, 3 Bur. 1921, 1 Bl. R-P- 599, it was decided, in a case of sale of goods at auction, that the auctioneer was the agent of both parties, and his entry a suffio i o cient memorandum. This case has been followed by others ; and is not questioned as to this point. In Walker v. Constable, 1 Bos. &Pul. 306, Lord Chief Justice Eyre was of opinion, that the case of Simon v. Metivier, applied to the sale of goods only, and not to lands. The same thing was decided in Stansfield v. Johnson, 1 Esp. It. 101; and by Sir William Grant, Master of the Bolls, in Buckmaster v. Harrop, 7 Ves. 344. Ill Coles v. Trecothick, 9 Ves. 249, Lord Eldon seems to be struck with the incongruity between the case of Simon v. Metivier and the cases on sales of land. Thé point is not decided, however, nor does he express any distinct opinion. The words of Lord Eldon, as reported, are : “ Much perplexity has arisen by the case of auctions ; for in Simon v. Metivier, it was held, as to goods, that the auctioneer taking down the name, was a signing within the statute : and it is very singular, that after, and without disturbing that, it was held at Nisi Priiis, by Lord Chief Justice Eyre, that it would not do as to land. Why not % The form of the two clauses is not the same ; but the terms as to the memorandum in writing, are exactly the same. That case was followed, certainly without much argument or discussion upon the bench, according to the report, in Walker v. Constable. Unless some distinction can be pointed out, the law is very inconvenient as to sales by auction : particularly if the auctioneer is to be considerrd the agent of one only; and if, putting .down the name, and ascertaining the sum, and putting that down upon the conditions of sale, which ascertain all the other terms, it is competent after that to the vendor to say, according to Payne v. Cave, that though the other party is bound in a degree by knocking down the hammer, he may, at that moment, revoke the authority. Upon such terms, mankind will not readily engage in these transactions.”
    There seems to me', something equivocal in this passage. The inconvenience Lord Eldon alludes to, seems to be, that the vendee should be bound by the act of a supposed agent in knocking down the' hammer, while, according to the case referred to, the vendor is not bound, but may then revoke the authority. Upon the case of Buckmaster v. Harrop coming before Lor$ Chancellor Erskine, he remarks, that he agrees with the observation’of Lord Eldon, and cannot see why the construction should not be the same with respect to land as to goods: but he adds, that after the adjudged cases, it would be too much for him to decide according to his own impression, without the decision of a Court of Law. 13 Ves* 472. Then came the cases of Emmerson v. Heelis, 2 Taunt, 38, and "White v. Proctor, 4 Taunt. 209, in which the former cases were overruled, and the auctioneer was held to be the authorized agent of the vendee, in a sale of lands, as well as of goods. After these came the case of Kemeys v. Proctor, 3 Ves. and Bea. 57, before Sir William Grant, who says, he feels bound to follow the law, and therefore submits to the cases of Emmerson v. Heelis, and White v. Proctor: otherwise he would have adhered to his own opinion. Chancellor Kent, in M'Comb v. Wright, 4 Johns. Ch. K. 665, follows the later decisions'; and this case is supported by others decided in New-York.
    On this statement of authorities, I venture to remark, that if the question had arisen in our Court, before the case of Emmerson v. Heelis, they, probably, would have felt bound, by the adjudicated cases, to decide against the auctioneer’s authority. But if our Courts are at liberty to follow the fluctuations of English doctrines since the English law was established by our constitution, they certainly are not bound to do so, further than they are convinced, or induced, by their reason and convenience. The only argument, so far as I can gather from the cases, against the earlier decisions, with respect to lands, is the incongruity and absurdity of giving a different’ construction to the same words, used in different clauses of the statute. Now, with respect to this, it may be remarked, that if the law established by the case of Simon v. Motivos, be too firmly settled to be shaken, the cases which established a different rule, with respect to land, conform more nearly to the statute. It seems to be a very strained construction, to say no more, that an auctioneer is made the lawfully authorized agent of the vendee, to sign an agreement. In the common understanding, he is the exclusive agent of the vendor, who employs him; and there is, in general, neither confidence nor communication between him and the vendee. The question seems then to be, whether we shall overrule decided cases, which conform to the plain expression of tlie statute, for the sake of congruity with other adjudged cases, which construe the statute more loosely. But, is there such incongruity, and absurdity, to the extent supposed % In some cases, which concern another law doctrine, it has been frequently remarked, that it is not unreasonable, nor absurd, that the same words should receive a different interpretation, when applied to a different subject matter, real, or personal estate. If before the statute the law had required a written authority to sign an agreement respecting lands, while it was otherwise as to goods, the words “ lawfully authorized” would have been construed with reference to the previous law, and would, of course, have received a different meaning when applied to land, or goods. But a parol authority is sufficient for either purpose. What constitutes a parol authority % I know of no precise rule upon the subject. It is a matter for testimony, and depends on the intention of the party granting- it, and is evidenced by his words, or acts. There does not appear to me any intrinsic absurdity, in requiring fuller and more unequivocal evidence of the party’s intention to grant an authority to bind liimself in an important transaction, than would be requisite in a trifling one. Sales of land are generally of more consequence, and are transacted with more form, and circumstance, than those of goods; and deciding as a juror would do, I should require moro- evidence of the intention to grant an authority in one case than the other. There seems to be a distinction requiring, or, at least, rendering highly convenient, a different rule in the two cases. In sales of goods, a great number of articles are usually offered, many of them of trifling value; and it would be almost impracticable to obtain the signature of every purchaser, to a memorandum of his purchase. If every bidder for goods might complete his purchase, or not, at his pleasure, sales at auction would hardly be used. It seems almost a matter of necessity, that the auctioneer’s memorandum should bind in such instances. The same necessity does not appear to exist with respect to lands. These are not bid off, like casks of sugar, or packages of dry goods. I can see no inconvenience in requiring that the purchaser should sign a memorandum, before the transaction shall be considered as compiete ; but, on the contrary, much fairness and equality : especially if, as Lord Eldon observes, the vendor may revoke- his authority, after the hammer is knocked down. If otherwise, it is to be recollected that you put it in the power of one who is, in truth, and effect, the agent of the one party only, chosen and paid by him, to fix. the terms of the contract for both. Chancellor Kent, in the case ofM'Comb v. Wright, observes, that from the publicity of sales at auction, there is no great danger of fraud or mistake. Sir William Grant, on the contrary, says, in Blagden v. Bradbear, 1! from the public nature of sales at auction, it does not follow that what passes there must be matter of certainty: so far from it, I never saw more contrary swearing than in these cases, when attempts were made to introduce evidence of what was said, or done, in the course of the sale.”
    As I before observed, however, I do not intend to be understood as expressing a definitive opinion on this point, or deciding the case upon if. My opinion is, that in the present case there was no sale at auction, within the meaning of the decisions. By referring to the English cases, it will he .apparent, that the sales at auction spoken of, are those made by persons exercising the public employment of auctioneers. The same thing appears in M'Comb v. Wright. Now, there is the most manifest difference between the sales made by such persons, and that which was made in this case. A person exercising the public business of an auctioneer, licensed in this State, is, in general, known to the public; he holds himself out as the agent of the public; his success in his business may be supposed to depend on his character for fairness and honesty : the business of an auctioneer can only be carried on successfully in populous towns, and his sales are necessarily ma.de in places of resort and notoriety; and in the case of a public officer, the law, and in that of an auctioneer, custom, prescribes that a certain notice .of sales shall be given by advertisement. But all this is different, when a party thinks proper to make an auetion, as it is called, for himself, and sell his property at public outcry. He may select as private a situation as he pleases ; and no rule prescribes what notice of the sale he shall give. If he is disposed to practise a fraud, he may easily pack a company of witnesses, and select a suitable instrument for his auctioneer. Besides, who was the auctioneer in this case 1 One of the witnesses acted as clerk; another as cryer. I do not know that one of these can be called the auctioneer, rather than the other. The business of the auctioneer is to negotiate, 'and superintend all the transactions relative to the sale. It seems to me that the comp]ajnant -who was present superintending, came nearest to discharging the functions of an auctioneer.
    It was also relied on in the case, that although no written memorandum was shown, there were sufficient acts of part performance, to take the agreement out of the statute of frauds. The only circumstances, which can be relied on as acts of part performance, seem to be, the paying off, by the defendant, of an execution for $100, affecting the land, testified by Captain Hunter; and renting to Mrs. Huson a portion of the land. With respect to the first of these, I do not think it necessary to inquire, whether the payment of purchase money, is to be reckoned such part performance as will take a case out of the statute. The law is clear, that it can only be so in favor of him who has paid. Part performance is allowed to take a case out of the statute, on the score of the fraud, or hardship, to which the party performing will be subject, if the agreement be not enforced. But the party who has received the money, will sustain no hardship. “ In general, the party seeking a performance must show a performance on his part, as a reason for the interference of the Court in his favor; for the ground upon which complainant acts, is fraud in refusing to perform, after performance by the other party.” Per Sir William Grant, in Buckmaster v. Harrop. As to the transaction with Mrs. Huson, it is equally clear, that the act relied on as an act of part performance must appear to have been in pursuance of the agreement, and intended to be in execution of it. The delivery of possession is held to be a sufficient part performance ; but it must be in pursuance, and execution of the agreement. Clerk v. Wright, 1 Atk. 12. Charle wood v. Bedford, 1 Atk. 417. Lacón v. Mertins, 3 Atk. 1. Cooth v. Jackson, 6 Ves.38, and many other cases. Now, whatever agreement there may have been, this was not intended to be in execution of it. This appears from the answer, and the testimony of Mrs. Huson herself; which is all the evidence we have on this point. Defendant authorized her to take possession, notas of his own land, but as the tenant of complainant. As to the circumstances testified by Mr. John Rogers, in relation to the defendant’s granting him permission to put a family from Ireland on the land, they were mere declarations ; no act was done; no possession taken in pursuance of the permission given. It must be an act prejudicial to the party claiming performance, that will take a case out of the statute. So of the several conversations testified to by other witnesses, as to his having bought the land, and his being the owner of it. All this was inadmissible evidence. It was parol 1 , evidence to establish an agreement, as was all the rest of the testimony offered in the cause.
    It is ordered, and decreed, that the bill be dismissed.
    From this decree the complainant appealed.
    Herndon, for appellant,
    cited M'Comb v. Wright, 4 Johns. Ch. It. 659. Clason v. Bailey, 14 Johns. 484. Buckmaster v. Harrop, 13 Ves. 456. Gordon v. Sims, 2 M‘C. Ch. 151. Hinde v. Whitehouse, 7 East, 558. Emmerson v. Heelis, 2 Taunt. 38. White v. Proctor, 4 Taunt. 209. Kemeys v. Proctor, 3 Ves. & Bea. 57. Coles v. Trecothick, 9 Ves. 234.
    A. W. Thomson, contra,
    
    cited 1 Mad. Ch. 376. Philips v. Thomson, 1 Johns. Ch. R. 131. Parkhurst v. Van Cortlandt, lb. 273. Jackson v. Catlin, 2 Johns. 248. Simonds v. Catlin, 2 Caines, 61. Meadows v. Meadows, 3 M‘C. 458.
   Colcock, J.

delivered the opinion of the Court.

In this case, we concur with the Chancellor in the result of his decree ; for we are perfectly satisfied, that it is not a case which comes within the meaning of a sale at auction.” It is a misapplication of terms, to call the sale in this case a public sale; or to suppose that the mere private agents of a man, appointed to sell his property, should be considered as auctioneers, in the legal sense of that word.

But we wish to be distinctly understood, as not concurring with the Chancellor, in the suggestions which he has thrown out, on the doctrine of sales at auction, as regards land. I do not mean to,intimate that there is any want of force in them. They are entitled to the highest consideration, as coming from him, and are cogent in themselves ; but I consider the question as at rest. -It has been decided by both our Courts of Law and Equity.

I have often regretted that any departure was made from the statute, because I think, that as to all sales its provisions might, by a proper arrangement, have been literally complied with, without any impediment to the conduct of sales. But as the words of the statute are the same as to both personal and real property, I confess the absurdity of a different construction of them, when applied to different jlaj gt.eat weight with me. Nor is it lessened by the recollection, that we are still guilty of alike absurdity on another subject. So far from its furnishing any reason why we should persevere in the decision, that the same words in a will may create a good limitation over as to one kind of property, and a void one as to the other L _ J .... kind, I think it should lead us to discard the absurdity m the latter, as we have done in the former case.

vidc Mazyck v. Vaiideriiorst, ante,

Having once left the statute, why should this feudal distinction be adhered to1? Why all this legal form and paiade as to land, when we know it often happens, that a bale of goods, sold by an auctioneer with little ceremony, and perhaps in ten minutes, is oftentimes of more value than half of the farms in the country. A bale of broad cloths, or a box of linens, will oftentimes sell for more money than would be sufficient to buy two thousand acres of g'ood land. My only object, however, in these remarks, is to avoid any misunderstanding as to our views of the general doctrine. The motion is dismissed, and the decree affirmed.

Johnson, J. and Evans, J. concurred.

Decree affirmed.  