
    Joseph J. Pope vs. William H. Chafee.
    
      Contract of Sale — Vendor and Purchaser — Dower—Delay—• Auctioneer — Agent—Confederate Treasury Notes — Alteration.
    
    A., being an officer in the Confederate army on service out of the State, by his agent, 0., offered for sale at auction, for cash, in Charleston, on the 9th November, 1864, A.’s house and lot in that city, and it was hid off by B. for $71,500. On the 21st November A. executed a conveyance of the house and Jot, and sent it to 0., who, on the 27th December, 1864, received payment in Confederate treasury notes, and delivered B. the conveyance. A. became a prisoner of war on the 20th December, 1864, and remained a prisoner until May, 1865. On bill filed to set aside the sale, held that A. was not entitled to relief in equity.
    If there was no contract to sell binding upon the purchaser, because no proper entry in writing had been made, that did not invalidate the executed contract afterwards made between the parties.
    There was no renunciation by A.’s wife of her right of dower, and O. had agreed to retain $20,0t0 of the purchase-money until dower should he renounced: Held, that this arrangement did not invalidate the sale. B. had the right to insist on indemnity, and that agreed on was not unreasonable.
    The delay from 9th November to 27th December, was caused by B. taking time to have the title investigated, followed by C.’s absence:
    
      Held, that the delay was not unreasonable.
    
      Held, that C. was A.’s agent to receive the purchase-money.
    
      Held, that the contract being executed was not void because the consideration was paid in Confederate treasury notes.
    17ords which should properly have been inserted in a blank in the conveyance, were inserted after the conveyance left A.’s hands, and before it was delivered to B.: Held, that this did not invalidate the deed in equity.
    Tlie ordinance of September, 1865, which permits a party to show the true value and real character of the consideration, does not apply where the proceeding is to set aside an executed contract.
    BEFORE LESESNE, CH„ AT CHARLESTON, FEBRUARY, 1867.
    The decree of the Chancellor is as follows:
    Lesesne, Ch. On the 9th day of November, 1864, tbe plaintiff’s mansion on Bull street, in the city of Chavleston, was put ’up for sale at public auction by John S. Riggs, auctioneer, and set down to the defendant as the highest bidder, at seventy-one thousand five hundred dollars, ($71,500.) Terms cash. The defendant employed John Phillips, Esq., to examine the title. The records belonging to Charleston District being at that time in Columbia, under the charge of R. S. Duryea, Esq., Mr. Phillips wrote Mr. Duryea for the proper certificates as to encumbrances, having previously received from the plaintiff his muniments of title. On the 21st of.November, the plaintiff executed at Savannah a conveyance of the property to the defendant, and sent it to Charleston to Mr. Riggs. On the 29th of November, Mr. Duryea sent his certificate to Mr. Phillips, who (having previously satisfied himself as to the derivation of title) called, the day after its reception, with the defendant at Mr. Riggs’ office, for the purpose of closing the transaction. But Mr. Riggs was in Columbia, attending to his duties as a member of the Legislature, and bis clerk, Mr. Chamberlain, was unable to act for him, as there was no renunciation of dower, in the deed of conveyance by plaintiff’s wife, and be, Chamberlain, had no instructions on the subject. Chamberlain said be would write to Riggs about it, and after that the defendant and Mr. Phillips called several times at Riggs’ office to know when the business could be settled. At length the Legislature adjourned, and Mr. Riggs came to Charleston on Saturday, the 24th of December. The defendant and Mr. Phillips called at his office on the 26tb, but did not find Mm in. On tbe 27th, they called again and saw him. It was then arranged that twenty thousand dollars ($20,000) of tbe purcbase-money should be retained by Mr. Riggs, until tbe renunciation of dower by Mrs. Pope should be obtained. Thereupon, the defendant paid Riggs sixty-one thousand five hundred dollars, ($61,500,) having at his request paid ten thousand dollars ($10,000) about tbe time of tbe sale, and took a receipt in these terms: "Received, Charleston, December 27th, 1864, of Mr. W. H. Chafee, the sum of seventy-one thousand five hundred dollars, ($71,500,) being the purchase-money for Major J. J. Pope’s residence, No. 46 Bull street, twenty thousand of which I hereby agree to hold, until the dower is properly renounced by Mrs. Pope,” and Mr. Riggs delivered the plaintiff’s conveyance to the defendant, who has also had possession of the premises since that time.'
    ' The prayer of the bill is that the conveyance of the plaintiff to the defendant may be set aside and declared void, that possession of the property be restored to the plaintiff) and that the defendant account to him for rents and profits of the same.
    It was proved at the hearing that the plaintiff, at the time of the sale, was a major in the army of the Confederate States, on duty at or near Savannah; that he became a prisoner'at the fall of that city, on the 20th of December, 1864, and continued so, until he was paroled on the 2d of May, 1865, and during all that time was in very feeble health ; that soon after being paroled, he went to Augusta; thence to Milledgeville, where his family was, and arrived in Charleston in the autumn of that year, still in very impaired health.
    It was also proved that though the auction sale .was conducted by the auctioneer, the entry in his sale book was not actually made by him, but by his clerk, Chamberlain, who stood by his side.
    It also appeared by the evidence that after sending the title to Mr. Riggs, the plaintiff wrote to him to hasten the settlement, and that on the 27th of November, having heard from him that it awaited Mr. Phillips’ approval of the title, he wrote the latter to arrange the matter with as little delay as possible. '■ The letter adds that there could be no renunciation of dower at that time, but it “ need not delay the settlement. One-sixtli may be retained, or security given for this amount, or what is better than either, (as some of the money will be invested in securities,) a sufficient amount of securities be deposited as a pledge until the renunciation can be given.” Mr. Phillips acknowledged this letter on the 1st of December, saying : “We will settle,” or “are ready to settle, except the dower.” And on the 3d of December, the plaintiff replied, and proposed that instead of withholding the amount of the dower, he should invest more than would cover it in railroad stocks, and deposit them as security for the same. He added : “ If the agents who represent me will not press this matter to a conclusion, will you act so far a friendly part to me, as-to press the matter yourself to an immediate conclusion.” And Mr. Riggs testified that when the business was closed on the 27th December, Mr. Phillips suggested that the $20,000 should be invested in railroad bonds, but he, Riggs, said he would not undertake to invest in anything but Confederate bonds.
    There was some discrepancy in the testimony as to the conversation which attended the arrangement for retaining $20,000, to meet the claim of dower. Mr. Riggs, who was examined by the plaintiff) says that Mr. Phillips alluded to his correspondence with plaintiff, and the anxiety of the latter to have the sale closed, said they were authorized to set apart a sum to meet the dower, and suggested $20,000 as a proper sum. Mr. Chamberlain too, testified that the sum of $20,000 was suggested by Mr. Phillips. Mr. Phillips, who was examined on behalf of the defendant, testified that he asked Riggs what about the dower, and Riggs replied, I don’t know; I will retain any amount you desire; there will be no difficulty about it. Witness said, we will retain $20,000, and Riggs assented.
    The plaintiff testified that when the conveyance was xecuted by him, and returned to. Mr. Riggs, the words, and all other persons,” which are now in the warranty, were nottbere; the blank intended for them had not been filled. And Mr. Phillips testified that when the said deed was delivered on the 27th of December, those words were in it.
    I have endeavored to recite, in brief, the substance of the evidence which bears on the points which were- discussed at the hearing. But the evidence itself will accompany this decree.
    It was contended by the plaintiff that there was no legal contract between these parties, because the entry by the auctioneer’s clerk did not bind the purchaser. But it is enough to say that, even admitting that to be so, the purchaser bound himself, by a part performance, directly after the sale, and actually executed the contract as soon as it was practicable for him to do so. Then it is objected that in executing the contract, he required security to be provided for the wife’s renunciation of dower, thereby introducing a “ new term.” But he had a good right to such security, and the plaintiff admits it in his letters to Mr. Phillips.
    Again, it was contended that there was unreasonable delay on the part of the defendant. But, in the judgment of the Court, there is no good ground for such a charge. He was entitled to a reasonable time to examine the proper records, and ascertain whether there were encumbrances on the title, and seems to have lost no time in doing that. He was ready by the second of December, and the plaintiff made no objection then on account of delay. On the contrary, in his letter to Mr. Phillips, of the third of December, he expressed an anxious desire that the contract should be consummated. Eor the delay which took place after the second of December the defendant is clearly not responsible.
    Again, it was urged that the contract never was in fact performed; that Riggs’ agency for the plaintiff as auctioneer and broker did not extend to the receiving of the price, and therefore;tbe payment to him was not a legal'payment. Even admitting that to be the law of Sonth Carolina, it would be a sufficient answer, that by placing the conveyance in his hands (which contained an acknowledgment of the receipt of the price) for the purpose of completing the transaction, and by calling on the defendant, through the defendant’s solicitor, to settle with him, he made him his agent. Indeed, in the letter of December 3d, he refers to him as his agent in terms. ' ■
    Again, it was insisted that the deed was altered in a material particular, after it passed out of the -plaintiff’s hands, and is, therefore, void. The alteration certainly occurred before it reached the defendant’s hands. And in the interval, it was in the possession of the plaintiff’s agents. - No such alteration could have been made by the defendant, But the reason of the rule for avoiding instruments on account of such alterations is to punish the fraud of the perpetrator, and the rule, therefore, is not applicable to this case.
    Lastly, it was contended that the defendant had no right to require so large a sum as $20,000 to be set apart on account of the dower. That moreover, his solicitor knew, through plaintiff’s letters to him, that the plaintiff was not willing that any sum should be held for the purpose mentioned, but proposed that a sufficient amount should be invested in railroad bonds, and those bonds deposited as a security for the renunciation of dower; that by withholding that information, and at the same time leading Riggs to believe that he was possessed of plaintiff’s views and was carrying them out, he obtained from him the settlement which was made, and which was contrary to plaintiff’s proposal ; that the deed was an escrow in Riggs’ hands, and the delivery of it by him to the defendant being consequent on a modification of the contract, effected in the manner above mentioned, and to which the plaintiff’s assent was essential, was not a valid delivery, and the contract must be regarded as still executory.
    If through fraud on the part of the defendant a modification of the contract had been effected, the delivery would not have been valid. But there was certainly no fraud, and I do not think it can properly be said that there was a modification- of the contract. The contract was that plaintiff should convey his house to the defendant, and the defendant on bis part should pay the amount of his bid. It implied that the title should be free from incumbrances, including, of course, all right of dower. But when the plaintiff’s agent met the defendant for the purpose of closing the transaction, there was an outstanding right of dower, which it was not then practicable to extinguish. The 'defendant had a right to an indemnity. The plaintiff’s letters admit' it. The agent agreed that the indemnity should consist in the retention of $20,000, until the renunciation of dower should be effected. And the transaction was closed accordingly. The defendant paid the whole price the agent delivered the plaintiff’s conveyance, and gave a receipt embodying a provision for the admitted indemnity _ Surely in the contract thus closed there was no modifi-' fication of the original contract. The purchaser was legally entitled to an extinguishment of the right of dower or an indemnity against it. The latter was provided.
    But it is said that the sum to stand in the place of the dower should have been only one-sixth of the purchase-money, that is about $12,000 in place of $20,000, and that instead of being held in the shape of money it should have been invested. It cannot be doubted, I think, that if those points had been insisted on by Mr. Biggs, they would have been yielded; and it was the plaintiff’s part to give Biggs his instructions regarding them, if he was not willing to leave them to his discretion.
    But the defendant’s solicitor, it is urged, was in the possession of tbe plaintiff’s views on these points, and failed to disclose them. Before considering what they were, I will remark that it was natural to suppose the plaintiff communicated directly to his agent all such instructions as he deemed material; it would have been very unreasonable for the purchaser’s solicitor to suppose it was intended to make him the medium of communication. And it appears that, in fact, the plaintiff, about the time he wrote to Mr. Phillips, also wrote a letter to Mr. Biggs, which has been mislaid. What then did the plaintiff say on this subject in his letters to Mr. Phillips? In the letter of November 27th, he says, one sixth may be retained, or security given for that amount, or some of the money be invested and a sufficient amount of securities deposited in pledge. And in the letter of December 3d he says, he proposes to make an investment in railroad stocks, more than will cover the dower, and deposit them as security. Now it is manifest that the writer’s great object was to effect a settlement, without delay, through the instrumentality of a portion of the purchase-money, to be used as an indemnity against the dower claim. The amount to be so used was a very subordinate consideration. To say that one-sixth was his ultimatum seems to me to give a forced construction to his letters. And I do not suppose that Mr. Phillips had the least idea that he was contravening the plaintiff’s views when he suggested $20,030. The investment of the sum to be set apart was a matter of more importance. But the plaintiff did not design or expect that it was to be done by Mr. Phillips. lie or his agent was the proper person to attend to that, and the defendant interposed no objection to its being done. On the contrary, his solicitor in his presence, suggested to Mr. Biggs to invest in railroad bonds, and Biggs declined to do it. Mr. Biggs says that in. making the settlement of the 27th December, he was influenced by the belief that Mr. Phillips had authority from the plaintiff to name the terms. But there does not seem to have bee'u anything to make Mr. Phillips suppose that he was so influenced. And moreover, the settlement, so far as Mr. Phillips was concerned, was substantially in accordance with the letters to him.
    What was said by the plaintiff’s counsel as to payment in Confederate notes not being a legal payment, could only apply to an executory contract. In my judgment this contract was validly executed. The loss the plaintiff has suffered is hard to be borne, but it is one of the many grievous results of a ruinous war, and not ascribable to any such cause as entitles him to the relief be asks for.
    It is ordered and decreed that the bill be dismissed.
    The complainant appealed and now moved this Court to reverse the decree on the grounds:
    1. Because there was not any agreement between the plaintiff and defendant which made a binding aud conclusive contract enforcible on either side, and if there were, defendant has not complied with it.
    2. Because the evidence proved that the agreement for the sale was not executed but executory.
    3. Because the settlement by the autioneer, J. S. Biggs, was outside.of and beyond the authority he had as agent for the seller, and did not bind his principal.
    • 4. Because the settlement was made by J. S. Biggs upon the representations of the attorney for W. H. Chafee, which were accepted by J. S. Biggs as the directions of his principal and which were not.
    5. Because the settlement was made after and when it was known that the complainant was a prisoner of war, and that such captivity suspended if it did not terminate the agency of J. S. Riggs.
    6. Because the deed, when received by J. S. Riggs, was an escrow, and there was not and could not be under the circumstances of the case a valid delivery thereof.
    7. Because the pretended consideration for the purchase of the house and lot of the complainant was Confederate treasury notes, which was not a lawful consideration.
    8. Because, according to the terms and considerations of the ordinance of the State of South Carolina, the complainant was entitled in consideration of his property, if he was held to have transferred the same to the defendant, to an enquiry as to the true value and real character of the consideration, so that regard being had to the circumstances) there should be substantial justice rendered to the complainant.
    9. Because the Chancellor should at least not have dismissed the bill without making some provision for the payment of the amount retained against the contingent claim of dower.
    
      Simons & Simons and Magrath, for complainant.
    Phillips, Memminger, contra.
   The opinion of the Court was delivered by

Wabdlaw, A. J.

Concurring with the Chancellor in all parts of his decree, not mentioned below, this Court will notice only the objections, which the appellant has here most strenuously urged.

The contract was executed, and the bill itself seems to have been framed with that understanding. The advertisement for sale intimates no exception to a perfect title, and the contingent right of dower, which the wife of a living husband has, is an incumbrance which one bound to make a perfect title must remove. (Polk vs. Sumter, 2 Strob. 380; Jeter vs. Glenn, 9 Rich. 380.) So the complainant seems to have regarded his duty under the contract. The acts and letters of the complainant furnished evidence that Riggs was his agent, authorized to deliver the deed and to secure the purchase-money. The arrangement by. which Riggs retained $20,000 as a pledge to secure the renunciation of dower, was comprehended amongst the “so many ways of fair arrangement ” which the complainant entrusted to the discretion of Mr. Phillips and the “agents who represented ” him. If the pledge has proved insufficient, that constitutes no ground for complaint on the part of the complainant. The deed was not delivered as an escrow. If alteration in it was made after it left the hands of complainant, that has not been done since it came to the hands of the defendant; the alteration can be imputed to no evil motive, if it was made by Riggs, and in that case being conformable to the complainant’s duty, might well be supposed to have been made by his agent with his authority, (Duncan vs. Hodges, 4 McC. 239;) but if it was the unauthorized act of a stranger, it would in equity be struck out, rather than allowed to destroy the deed in the hands of an innocent grantee. (6 East, 310.)

The captivity of the complainant might require special caution in guarding against duress, in reference to all acts done by him subsequent to his capture, but cannot affect power given or other act done by him when he was free.

The Act of Congress, July, 1862, Statutes at Large, U. S. 591, by its sixth section makes void “sales, transfers, or conveyances of property” by other persons than “those named as aforesaid and the complainant being a major in the army of the Confederate States, was in one of the classes “ named as aforesaid.” If that section, or any other part of the Act, embraces transfers by him, it had regard to the seizure there contemplated, and proceedings had thereunder, not to transfers made by one of the persons meant to another of them, unconnected with the offences intended to be punished.

The illegality imputed to Confederate treasury notes affects not an executed contract between persons in pari delicto, at a time when, and place where, the only government and only currency were those of belligerents engaged in hostility to the United States, if the contract was, as in this case seems to have been, 'in no way intended to aid the cause of those belligerents. (Philips vs. Hooker, Supreme Court of North Carolina, Amer. Law Register, Nov. 1867.)

The ordinance of tbe convention of September, 1865, which permits the true value and attendant circumstances to be shown for affecting substantial justice, is suitable to a case where the aid of a Court is sought to enforce a contract, but not to one where a contract has been executed and power is invoked to set it aside.

The motion is dismissed.

Dünkin, O. J., and Inglis, A, J., concurred.

Motions dismissed.  