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IN RE DECKERT.
ratify the fifteenth amendment proposed by Congress to the Constitution of the United States, and all the proceedings under the act should be approved by Congress.
Under the provision of these several acts the President of the United States issued his proclamation designating the 6th July, 1869, as the time for submitting the Constitution to the vote of the people. On that day the vote was taken, and resulted in an almost unanimous ratification. The state officers, members of Congress, and members of the general assembly were elected at the same time. The governor, thus elected, was inaugurated on the 21st September, 1869. The general assembly met on the 5th of October, and on the 8th passed acts ratifying the fourteenth and fifteenth amendments. It then adjourned to reassemble after Congress should approve this action of the people.
On the 26th January, 1870, Congress passed an act admitting the State to representation, and reciting that the people of Virginia had framed and adopted a constitution of state government which was republican.
From this it will appear that the Constitution was adopted and the government partially, at least, organized under it previous to the 15th November, 1869. It is true that the Constitution was adopted and the organization made to obtain admission to representation in Congress, but it is equally true that it was framed and ratified by the people as and for a constitution of state government. Admission might follow its adoption, but was not necessary to give it effect. On the contrary, Congress required that it should become operative and have effect before the admission could be granted.
In the act of April 10, 1869, it was provided that at the time the vote upon the ratification was taken there should be an election by the voters of members of the general assembly and all the officers of state provided for by the Constitution ; that if the Constitution should be ratified, the legislature should assemble at the capital on a day named, and that, when lawfully organized, it should act upon the ratification of the proposed amendments. There certainly could be no lawful action by a legislature under the Constitution unless the Constitution was in force at the time the action was had. That Congress understood that the Constitution was in force and operative at the time of the admission is apparent from the terms of the act granting such admission. In that it was recited that the people of Virginia had framed and adopted a constitution of state government which was republican ; that the legislature elected under the Constitution had ratified the fourteenth and fifteenth amendments, the performance of which acts in good faith was a condition precedent to the representation of the State in Congress, and because this had been done such representation was permitted.
It is true that the government was not fully organized in all its departments under the Constitution, and that the United States retained its supervisory powers under the reconstruction acts, until the final action of Congress. Complete organization of the government, however, was not necessary to give effect to the Constitution, and no modification of the particular provision now under consideration was ever attempted by the United States. The government established by the people remained as established until actually changed by the United States in the exercise of its supervisory powers.
WALSH v. BARTON.
In our opinion the Constitution of Virginia took effect, so far as it related to the provision for exemptions, on the 6th of July, 1869, - the day of its ratification by the people. It follows that the exemption laws passed to give effect to that provision are to become operative for the benefit of its citizens from that date. As against Roberts & Company, therefore, the bankrupt is entitled to his homestead.
The order of the district court allowing an assignment of the homestead as against the claims of Smith, Wanderlink, and Schindel is reversed, but it is affirmed as against that of Roberts & Company.
SUPREME COURT OF OHIO.
[TO APPEAR IN 24 OHIO STATE.]
WALSH v. BARTON.
MEMORANDUM OF SALE OF REAL ESTATE. - STATUTE OF FRAUDS.
DEED OF PRESIDENT OF RAILROAD AS EVIDENCE. MORTGAGE OF RAILROAD ON “THE ROAD. SPECIFIC PERFORMANCE. STIPULATION TO MAINTAIN FENCE. POSITIVE” SALE AND BY-BIDDERS.
1. Where the name of the agent, with whom a contract for the purchase of real
estate was made, appears in the written memorandum of the agreement signed by the purchaser, who is the party to be charged, the statute of frauds is satisfied,
although the names of the principals are not disclosed therein. 2. When a vendor of land, having contracted to convey a perfect title, brings his
action to compel specific performance against the vendee, who denies the sufficiency of the vendor's title, the burden of showing title in himself rests on the plaintiff, and the introduction of a deed of recent date executed to himself, without further
proof of title, is not sufficient. 3. A deed, purporting to have been executed by the president of a railroad corpora
tion, under the seal of the corporation, as authorized by section 15 of the act of May 1, 1852 (S. & C. 279), if objected to, cannot be given in evidence without proof of its execution. 4. The power to purchase land, conferred upon a railroad company by section 14
of the act of February 11, 1848 (S. & C. 273, note), is not limited to the acquisi
tion of such lands as may be necessary for operating or maintaining its road. 5. If, in making a purchase of real estate, the company abuse the power conferred upon it by said section, still
, after resale and conveyance, the title becomes indefeasible in the hands of its vendee. 6. A mortgage executed by a railroad company on the road” of the company, “ whether made or to be made, acquired or to be acquired, and all property, real or personal,” of the company, " whether now owned or hereafter to be acquired, used, or appropriated for the operating or maintaining the said road," is not a lien upon real estate of the company, then owned or afterward acquired, which
has not been used or appropriated for operating or maintaining the road. 7. A purchaser of land, who is entitled under his contract to a perfect title, cannot
be compelled to perform his agreement, if the property purchased be subject to a judgment lien, unless he can be protected by the decree from loss or inconvenience
WALSH v. BARTON.
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 will not
attach to, or run with, lots which do not abut on the line of the proposed fence. 9. Where a “ sale” at 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.
WALSH v. BARTON.
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
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.
WALSH 0. BARTON.
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 $504 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.
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 a 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