Miller v. Pelletier

The question to be decided lies between the defendants, as to which of them is entitled to the sum of money paid into court upon the complainant’s bill of interpleader? The facts are before me .upon the report of the master, on a reference as between these parties. The money in question was the ten per cent, deposit paid by Wolcott on the sale of leasehold property by auction, the complainants having been the auctioneers, which was struck off to Wolcott as the highest bidder—behaving, afterwards, refused to consummate the purchase by paying the residue of the purchase money and claimed a return of the ten per cent. The whole case turns upon the point, whether a binding contract was made between the parties?

The property was put tip at auction ; the terms of sale were announced ; it was fairly struck down to Mr. Wolcott, the highest bidder; and, on his giving his name, the auctioneer entered it in the sales-book as the name of the purchaser, and he, thereupon, paid the ten per cent, required by the terms of sale.

Although there is some dispute about the fact of the terms of sale being entered in the sales-book of the auctioneer before the name of the purchaser was written there, yet I *105think the evidence satisfactorily enough shows that the terms of sale were previously entered and were sufficiently full and explicit of the contract to render it binding upon the purchaser, on his name being placed there: inasmuch as the auctioneer thereby became his agent for that purpose on the property being struck down to his bid, and by his giving in his name as purchaser. I say this, however, with reference to the law as it stood anterior to the revised statutes; and as it had been declared by Chancellor Kent, in McComb v. Wright, 4 J. C. R. 659.

But the law, in this state, has undergone a change by the revision of 1830. It seems no longer to require any note or memorandum of the contract of sale to be signed or subscribed by the purchaser or vendee: Baptist Church of Ithica v. Bigelow, 16 Wend. 28 ; Edwards v. The Farmers Fire Insurance and L. Co., 21 Ib. 493.

The language of the statute now is, that “every contract for the leasing for a longer period than one year, or for the sale of any lands or any interest in lands shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made; and the subscribing may be by the agent of such party “ lawfully authorized :” 2 R. S. 135, § 8, 9. Now, whether the legislature meant that a purchaser shall be bound, whether he subscribes a note or memorandum of the contract or does not, contrary to the intention and object of the revisors in proposing the section in the form in which it appears they originally proposed it; (see their notes) yet, one thing is very certain: that a contract for a sale of lands or an interest in lands beyond a lease for one year can be of no forcé or validity whatever, not even against the vendee or purchaser, although he may have reduced it to writing and signed or subscribed it with his own signature, unless the veedor or party making the sale also subscribed it, either by himself or his agent. The statute interposes and declares that without this, among other requisites, the contract shall be void, not merely voidable as to the party not signing or subscribing it, leaving it in force against the vendee or purchaser who has subscribed, but void in toto and not to be enforced at *106all. The word “ subscribed” here used is to be understood in a different sense from the word “ signed” in the old statute (see Davis v. Shields, in Error, 26 Wend. 341.) In the case in hand there is no evidence, nor is it alleged or pretended that Pelletier or any one in her behalf signed or subscribed the contract of sale in question. Her name does not appear even in the auctioneer’s memorandum of sale, nor was her name written or subscribed to the terms of sale by the auctioneer or any other agent. The requirement of the statute in this respect appears to have been entirely overlooked. The contract must be deemed void as the statute declares it to be. The subsequent execution and tender of the deed by the party does not rempve the difficulty. This was not making the contract of sale or the agreement for the sale to be made as contemplated by the statute, but it was the intended fulfilment of the previously made supposed contract. If the deed had been accepted, then it would have been an executed contract and all well enough; but the purchaser had a right to repose, as he did, upon the statute and to repudiate the transaction.

I must decree the money to be returned to him, with his costs to be taxed and to be paid by Pelletier, (a)