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Vol. I.)

WALSH v. BARTON.

[No. 8.

by reason of the lien, although it be shown that the judgment debtor has other

property sufficient to satisfy the judgment. 8. Where it is stipulated in a deed-poll that the grantee, his heirs and assigns, shall

build and perpetually maintain a fence on the line between the land granted and other lands owned by the grantor, and the parties to such deed, at the time of its execution, contemplate the subdivision of the granted premises into building or town lots, and their subsequent sale, the burden of maintaining such fence wit not

attach to, or run with, lots which do not abut on the line of the proposed fence. 9. Where a saleat auction is announced to be a positive, it is an act of fraud

on the part of the vendor, or his agent, to employ by-bidders to keep up the price for his own benefit.

ERROR to the superior court of Cincinnati, in general term.

The original action was brought by the defendants in error, against the plaintiff in error, to compel the specific performance of certain contracts for the purchase of real estate. The plaintiffs had purchased from the Marietta and Cincinnati Railroad Company several parcels of land, situate near the city of Cincinnati, a part of which they subdivided into lots, and employed the firms of George H. Shotwell & Company, Hemmelgarn & Company, and Hoeffer & Buening, auctioneers, to sell the same. These auctioneers, on the 7th day of June, 1869, in accordance with public notice given in their own names, and upon the terms and conditions of sale then and there announced, offered the several lots at public auction on the premises. Four of the lots thus offered were sold separately to the defendant, who at the time signed a certificate of purchase for each lot. These certificates were of like tenor and effect. The terms of sale were: “ One fourth purchase money cash ; balance in one, two, and three years. Title perfect." Sale positive.” The purchaser, Walsh, having refused to execute the contracts on his part, the vendors commenced their said suit on the 3d of July, 1869.

The defendant answered as follows:

1. That the plaintiffs never tendered him a deed properly executed, and in due form, for the real estate described in their petition. 2. That whereas the plaintiffs undertook, and by advertisement

promised, to sell, convey, and deliver the lands and tenements whereof they speak in their petition, with perfect title and free of all claims, they had no such title at the time of the pretended sale, nor afterward until and after the commencement of this action. And they have no such title at present.

3. That the plaintiffs employed puffers and by-bidders at their sale, whereby the defendant was deceived in his estimate of the value of the property. And the auctioneer whom they employed so fraudulently behaved as to induce this defendant to bid against himself, twice or thrice, for the real estate described in the petition.

4. That the price claimed by the plaintiffs, as described in their petition, is unreasonable and exorbitant.

To which the plaintiffs replied:

1. That they did tender the defendant a deed properly executed, and in due form, for the real estate described in the petition.

2. They say that they had a clear title to the said real estate, and still have such title.

Vol. I.]

WALSH v. BARTON.

(No. 8.

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3. They deny that they employed puffers and by-bidders at their

sale, or that any such bids were made for any of the property sold. They deny that the auctioneer employed by them fraudulently, or otherwise, induced the defendant to bid against himself.

4. They deny that the price at which said real estate was sold to the defendant is unreasonable and exorbitant.

The cause was tried to the court at special term, and the following facts were specially found :

1. That on June 7, 1869, in pursuance of and after advertisement made, the plaintiffs caused to be exposed to sale at public auction, a num. ber of lots of ground in a subdivision of “ Ludlow Grove," as laid out and subdivided by the plaintiffs.

2. That the defendant was a bidder, with others, at said sale, and purchased the four lots of ground described in the petition herein, for the amounts and upon the terms and conditions therein stated.

3. That the sale of the lots of ground sold to and purchased by the defendant was a fair sale.

4. That the defendant, at the time of said purchase and sale, signed and executed a contract, in writing, separately for each of the lots of ground so purchased by and sold to him; which contract, so executed, recited the terms of sale, the amount to be paid as purchase money, and a description of the lot purchased.

5. That the plaintiffs on July 1, 1869, tendered to the defendant a deed of general warranty, with release of dower, and in due form of law, for the four lots of ground purchased by the defendant at said sale.

6. That the defendant refused to receive said deed when so tendered to him, refused to pay one fourth of the purchase money, and to execute and deliver to the plaintiffs his promissory notes, and secure the same with a mortgage upon the lots of ground so purchased, for the remaining three fourths of the purchase money.

7. That the plaintiffs derived their title to the said real estate from the Marietta and Cincinnati Railroad Company, as reorganized, by deed bearing date on May 22, 1869.

8. That the Marietta and Cincinnati Railroad Company, as reorganized, executed and delivered to John L. Taylor, trustee, two mortgages, which remain uncancelled of record, on the said railroad and all the property, real and personal, used or appropriated for the operating and maintaining the said road.

9. That the real estate sold to and purchased by the defendant was not used, appropriated, or necessary for the operating or maintaining the said road, and is not subject to, included in, or the title thereto incumbered by said mortgages.

10. That the plaintiffs were able, ready, and offered to comply with the terms and conditions of said sale on their part.

11. That the defendant has refused to perform his part of the said agreement in the purchase by him made.

Thereupon the court rendered judgment for the plaintiffs for specific performance.

The defendant moved for a new trial, which motion being overruled he excepted, and by bill of exceptions placed the whole of the testimony

upon the record.

Vol. I.]

WALSH 0. BARTON.

[No. 8.

The judgment at special term was afterward, on petition in error, affirmed in general term.

It is now alleged for error, among other things, that the court below, at special term, erred in admitting in evidence the deed from the Marietta and Cincinnati Railroad Company to the plaintiffs below, and in its findings of facts, and in its finding of law, and in rendering the judgment entered of record.

MCILVAINE, J. Several questions are presented for our consideration in this case.

I. It is claimed that the written memorandum of the contract sought to be enforced, is not sufficient to satisfy the statute of frauds in this, that it does not contain the names of the vendors. The memorandum is as follows:

“CINCINNATI, June 7, 1869. “ This is to certify that I have this day purchased, at auction, through George H. Shotwell & Co., Hemmelgarm & Co., and Hoeffer & Buening, auctioneers, a lot 167.80 feet front, and 210 feet, more or less, in depth, with improvements, at $507 per front foot, one-fourth cash, and the balance in one, two and three years, with interest at six per cent., secured by mortgage on the premises, being lot 'A' in Barton, Brewster, and Folz subdivision.

MICHAEL WALSH."

This writing, by fair construction, shows that the auctioneers therein named, acted in and about the making of the sale as the agents of the vendors. It is certified therein by the vendee, who is the party sought to be charged, that he purchased the property described at auction through them. By this language we understand that the property was sold to him, by them, as auctioneers, and if so, it sufficiently appears that they were the agents of the vendors. The only question, therefore, is whether it be necessary, in order to satisfy the statute of frauds, that the names of the principals should appear in the memorandum, in a case where the contract was in fact made by their agents, and the names of the agents are set out in the writing. We think the statute is satisfied in this respect, when the names of the agents are set out in the writing, though the names of their principals be not disclosed. The case being thus taken out of the statute, the right or liability of the principals may be enforced, and their identity established, according to the rules of law governing in other cases, where contracts are made by agents without disclosing their principals. White v. Proctor, 4 Taunt. 209; Hood v. Lord Barrington, C. L. P. (Eq.) 221; Lerned v. Johns, 9 Allen, 419; Eastern R. R. Co. v. Benedict, 5 Gray, 561; Gowen v. Klous, 101 Mass. 455; Higgins v. Senior, 8 Mee. & W. 834; Thayer v. Fuller et al. 22 Ohio St. 78.

II. Did the plaintiffs below show such title in themselves as warranted the decree for specific performance ?

1. The plaintiffs had contracted to convey to the defendant a good title, or, as the conditions of sale termed it, a “perfect title.” The defendants denied that they were possessed of such à title; and the only evidence offered to show title in themselves, was a deed from the Marietta and Cincinnati Railroad Company to them, dated May 22, 1869, less than a month prior to the sale, together with oral testimony, tending to prove

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WALSH v. BARTON.

(No. 8.

that the railroad company had been in possession before the date of the deed. The nature of this possession, or the length of time during which it was held was not shown.

Captious objections to the title ought not to prevail, when made by a purchaser who seeks to avoid the performance of his contract; but in a case of specific performance, when the title of the vendor is denied, a decree should not be rendered against him, unless it be made to appear, with reasonable certainty, that the title is good; and the burden of making it so appear rests upon the vendor. Having contracted to convey a good title, and the evidences of his title being matters peculiarly within his own knowledge, the vendor must aver and prove that he is able, as well as willing, to perform the contract on his part. We do not say that the vendor, in such case should be called upon in the first instance to show, beyond all doubt, that his title is perfect; but he should satisfy the chancellor that his title is such as would satisfy men of ordinary prudence. We think, therefore, that the court below was not warranted in finding, from the testimony, that the plaintiffs were able to comply with the conditions of the contract on their part.

2. Did the court err in permitting, against the objections of the defendant, the deed from the M. & C. R. R. Čo. to the plaintiffs, to be given in evidence without proof of its execution ?

This deed purports to have been signed by John King, Jr., president of the corporation, and under the seal of the corporation, as authorized by section 15 of the act of May 1, 1852 (S. & C. 279); and its execution purports to have been attested by two witnesses.

The signature of the president of the corporation to such a deed does not prove itself, nor is it proven by the seal of the corporation. It was error, therefore, to admit the deed without proof of its execution by the president of the company.

It is suggested by defendants in error that, in fact, the record of the deed, from the office of the recorder of Hamilton County, was the instrument offered, and not the original deed : and that the record was admissible without proof of the execution of the instrument recorded.

To this suggestion it is sufficient to say, that the bill of exceptions shows that the deed itself was the objectionable instrument admitted, and we are not at liberty to question the verity of the record,

3. Waiving the error in admitting in evidence the deed from the railroad company to the plaintiffs below, it is claimed by the plaintiff in error that the title of the plaintiff below is at least doubtful, because the railroad corporation had no power to acquire or transfer the title to the premises in question.

We agree with counsel, that a corporation has power to acquire real estate only when such power is granted to it by statute or by its charter. Power to acquire and convey real estate, however, was granted to this railroad company by section 14 of the act of February 11, 1848 (S. & C. 273, note), as follows, to wit:

“Such company may acquire, by purchase or gift, any land in the vicinity of said road, OR through which the same may pass, so far as may be deemed convenient OR necessary by said company to secure the right of way or such as may be granted to aid in the construction of said road, or VOL. I.

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Vol. I.)

WALSH v. BARTON.

(No. 8.

be given by way of subscription to the capital stock ; and the same to hold or convey in such manner as the directors may prescribe.”

See also section 15 of act of May 1, 1852, S. & C. 279.

The only testimony in this case tending to show the purpose for which the company acquired these lands, is to the effect that they were purchased to secure a right of way for its road through the same. If such purchase, in the exercise of good faith, was, by the company, deemed convenient or necessary to secure the right of way for the road, it is clear that the power granted by the statute was ample for the purpose. If, however, it were shown that the company abused its discretion and power in making the purchase — that, in fact, the purchase of the whole of these lands was not convenient or necessary to secure the right of way for its road — still we think, that the lands having been purchased by the company for a valuable consideration, and having afterwards been conveyed to the plaintiffs, the title became indefeasible in them. In no event, under the laws of this State, would the property escheat; and the vendor of the company, and the company itself, having executed the conveyances and delivered possession, would be estopped from questioning the validity of the plaintiffs' title. Whatever consequences might result to the corporation, if the State were to inquire into the abuses of its charter, it is quite certain that the title to these premises in the possession of the plaintiffs below or their assigns, would not be affected by such inquiry. 3 Rand. 136 ; 7 S. & R. 313; 11 S. & R. 411; 7 Penn. St. 233; 4 Johns. Ch. 370; 4 Sandf. Ch. 758 ; 9 Humph. 306; Land v. Hoffman et al. 12 Am. L. Reg. 143, Sup. Ct. of Missouri.

III. It is also claimed that the plaintiffs below were not entitled to the decree for specific performance, because the title tendered to the defendant was subject to certain incumbrances.

1. Previous to the conveyance of these lands by the railroad company to the plaintiffs, and in fact before the railroad was constructed through them, the company had executed two mortgages to one Taylor, as trustee, to secure the holders of the company's bonds, upon the following described property, to wit:

“The road of the said party of the first part from Marietta and Belpre to Cincinnati and Dayton, and Hillsboro, whether made or to be made, acquired or to be acquired, and all property, real and personal, of said party of the first part, whether now owned or hereafter to be acquired, used or appropriated for the operating or maintaining the said road extending from Marietta and Belpre, as aforesaid, and all the privileges and franchises of said party of the first part for the holding, operating, and maintaining the same, together with the income thereof."

At the time of trial below, these mortgages were unsatisfied. The testimony shows that the railroad was not located on the lands embraced in the purchase of the defendant below, nor were the lots purchased by him ever used or appropriated for railroad purposes. The question, then, is this: Was the entire tract of land embraced in the mortgages ? We think not. The words “ used or appropriated for the operating or maintaining the said road,” restrict the operation of the granting words contained in the mortgages to such property, personal or real, of the company, as then was or thereafter might be used or appropriated for operating or

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