
    *Trustees of the Episcopal Church of Macon, v. Leroy M. Wiley and J. B. Rowland.
    A bill may be sustained here for the specific performance of a contract for the sale of lands in Georgia; and defendant was decreed to pay the purchase-money on condition that plaintiff execute and tender titles to be approved by the Commissioner. [*585]
    On a sale of land at auction, the auctioneer is the agent of both parties, and his memorandum in writing is sufficient to take the agreement out of the statute of frauds. [*590]
    And when the auctioneer made a pencil memorandum on a loose slip of paper at the moment of sale, and shortly afterwards entered the sale in his sales book, the latter is regarded as the true entry. [*590]
    And where the auctioneer entered the sale as made to the agent the contract may be enforced against the principal when he is discovered; and the authority of the bidder need not be in writing. [*590]
    Heard before Chancellor Johnston, Charleston, January Term, 1836.
    The contract in this ease, relied on by the plaintiffs, 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 plaintiffs, by T. P. Bond, an auctioneer; and was knocked off to one Jesse Smith, as the highest bidder, at the price of $2,450. 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 of $2,400. The auctioneer then entered the name of Rowland, as the purchaser, with a pencil, upon a loose slip of paper; 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 individually, or as one of the concern of Wiley, Baxter & Carter, 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 Georgia shall make good the title. In the meantime, 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 the contract.
    Johnston, Chancellor. The plaintiffs aim at Wiley, as the only solvent defendant.
    It would be sufficient for the plaintiffs to have made out a contract with Rowland, either as the agent of Wiley, or as jointly interested with him in the purchase ; either would give them a decree 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 to these r^goc two, who are also interested in the purchase, the plaintiffs are not to be turned round to them, nor obliged to resort to other than those whose names were disclosed to them when the sale was 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 purchase, 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 to me equally plain. For admitting that the auctioneer’s memorandum does not take the case out of 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 v. 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 plaintiffs are not entitled to a decree, but upon making titles; and this Court has not power to compel them. But I can give them a decree dependent upon their making titles.
    It was, indeed, contended for the defendant, 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 u Muschamp, 1 Ternon, 15, decided by Lord Nottingham, in 1682, is an example. Muschamp, by a fraud in England, obtained a rent charge on the Earle of Arglasse, in Ireland, and on a bill brought in England where Muschamp was found, to be relieved against the grant, he 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 L makes no difference, as the subsequent cases show. 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 v. Eustace, 1 Yernon, 405, tried in 1686, the bill was to be relieved, touching trusts created in Ireland, of lands in that kingdom. Lord Chancellor Jeffries doubted his jurisdiction, because the trusts were not created in England, and thought that it was the circumstance of the fraud being committed in England, which gave jurisdiction in Arglasse v. 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 v. Rous, 1 Atk. 543, brought before Lord Hardwieke, in 1138, 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 form of defence, and therefore overruled the demurrer, but entered into a series of observations, showing its clear conviction, that whenever the Court can effectually act in personam, it has jurisdiction.
    Foster v. Yassall, 3 Atk. 581, which came also before Lord Hardwieke, in 1141, turned upon the informality of the plea put in ; but his lordship, while he overruled the plea, for want of averments, 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.
    Penn v. Baltimore, 1 Yes. 444, was decided by Lord Hardwieke, in 1150, 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 rem, but only in personam.
    
    *In Cranstown v. Johnston, 3 Yes. jr. 110, which came before the Master of the Rolls, in 1196, 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 thát 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 personam, and decreed a re-conveyance, 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 of them.
    The case of Pike v. Hoare, Ambler, 428, tried iu IT6'3, and relied on by defendant’s solicitor, is not at all calculated to shake the weight of these authorities. The bill was to have an issue of devisavit 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 five hundred 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’s conduct was such, that if the land was in 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 r*goo were in this State, and the bill was against them to compel them L 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. I said it was immaterial to the plaintiffs, whether Rowland contracted as agent, or partner, of Wiley. And so it is. But it is material 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, they 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 on 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. (Decree filed 4 January, 1836.)
    (Jauuaxy 18, 1836.) The decree dated the 4th inst., having left to the defendants, the choice of taking a title jointly or the said Leroy M. Wiley* alone, and no choice being made — it is ordered and decreed, that upon the plaintiffs 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 month's from this date, the defendants do pay to the plaintiffs the sum of two thousand four hundred dollars, with interest on sixteen hundred dollars, from the seventeenth day of January, eighteen hundred and thirty-two : and on eight hundred dol*kqo-i lars> fr°m ^he seventeenth* day of July, in the year eighteen hunJ dred and thirty-two, and the costs of this suit.
    The defendant Wiley appeals from the decree made in the case, upon the following 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 consecpience 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 of 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 of Wiley Baxter & Carter
    5. Because his Honor decreed, that although the remedy was not mutual, and the Court had no power to enforce performance of the contract on the part of the plaintiffs who were without the jurisdiction 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 circumstance of the parties are changed, and the property in this case having depreciated during the period of delay on the part of the plaintiffs, a specific performance of the contract ought not to be decreed against the defendant.
    
      A. M. Smith, for the motion.
    
      Petigru, contra.
   Chancellor Harper

delivered the opinion of the Court.

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

With respect to the first ground, we do not think it necessary *5901 determine, whether the answer overrules the plea ; because we -I 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 respect to 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 v. Johnson, 1 Esp. Ni. Pri. 101; Buckmaster v. Harrop, 1 Ves 341. "But Lord Eldon expressed a different opinion, in Coles v. Trecothick, 9 Ves. 234, which has been followed ever since — by Lord Erskine in the same case, of Buckmaster v. Harrop, 13 Ves. 456, and by Sir Win. Grant, in Kenneys v. Proctor, 3 Ves. & B. 57. He states that he should himself have been of a different opinion, but was governed by the decisions of the Court of Common Pleas, in Emmerson v. Heelis, 2 Taunt. 38, and White v. Proctor, 4 Taunt, 209, to the same effect with the equity cases cited. The same thing has been decided in New York. —M’Combe v. Wright, 4 Johns. Ch. Rep. 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 Appeal, 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 the property, and the tferms of sale. I do not understand the objection to apply to the entry in the auctioneer’s book, but to the pencil memorandum made on the land at the moment of sale, which it was thought constituted the true memorandum. But this is contrary to the universal understanding. The entry in the auctioneer’s book was made as early as practicable. If a memorandum of sales be made by a shopkeeper, in pencil, or on a slate, and afterwards entered in the day book, the latter is always regarded as the original entry.

Then it was argued, that having contracted and dealt with Rowland, the plaintiffs have no recourse against Wiley. But it is perfectly well 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 v. Gandasequi, 15 East, 62, and Railton v. Hodges, 4 Taunt. 576, &c. There is a difference if a party contracts with an agent, knowing of the principal. There, if after he knows the ^'principal, he continues to deal ex- r*Kq-| elusively with the agent, and gives the credit to him, the principal <- will be discharged. Addison v. Gandasqui, 4 Taunt. 574. Here, however, the plaintiffs dealt with the principal from the time they discovered him. The case of Kemeys v. 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 v. 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 Chancellor’s conclusion.

The fifth ground was not urged, and seems to be without foundation.

Chancellors Johnson and Johnston, concurred.  