|Court of Appeals of Kentucky.|
|LAWSON et al. v. WILLIAMS.|
|Jan. 26, 1909.|
Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Suit by G. P. Lawson and others against T. E. Williams to recover for timber cut on land.
From a judgment dismissing the suit, plaintiffs appeal.
The proof in this case is very conflicting, but the facts as shown by the weight of the evidence are as follows: Previous to 1886, John Lawson lived in Knox county, and his son, G. P. Lawson, lived near him. They had made two surveys of land on the mountain above them; one for 50 acres, and one for 25 acres. The patents had issued in the name of John Lawson; but the son had assisted in surveying the land, and in taking it up. In the fall of 1886 John Lawson sold the place where he then lived, including in the sale a part of these two surveys. He contemplated moving to Bell county, and was disposing of his personal property with that view, when J. I. Frazier proposed to buy the remainder of the surveys above referred to, then of little value, and supposed to be only valuable for the timber on them. The trade came up between Frazier and G. P. Lawson, and, when the terms were agreed on, Frazier, G. P. Lawson, and Eb. Detherage went to the residence of John Lawson, where G. P. Lawson told his father what he had done, and that they proposed to close up the trade, asking him to go with them. John Lawson said that he was busy getting up his corn and for them to go ahead, and whatever G. P. Lawson did was all right with him. Upon this, G. P. Lawson, Frazier, and Detherage went to G. P. Lawson's house, where Detherage drew a title bond for the sale of the land, which G. P. Lawson signed. He also drew notes for the purchase money, which Frazier signed, the consideration for the land being $300. Frazier afterwards paid the notes. The Lawsons moved to Whitley county, and there bought a farm of which the father took two-thirds and G. P. Lawson one-third. Frazier cut some of the timber from the land, and sold the bond to I. A. Partin. Partin sold it to T. E. Williams, and Williams cut much of the timber from the land. John Lawson died in Whitley county in November, 1891, leaving several children surviving him. This suit was brought by his children on March 9, 1905, against T. E. Williams to recover for some timber he had cut on the land. Williams relied upon his title bond, and, the case having been submitted to the circuit court, the action was dismissed, and the plaintiffs appeal.
When the bond was executed and delivered to Frazier, only G. P. Lawson's name was signed to it. After it had been assigned to Partin, he went to Whitley county and asked John Lawson to sign the bond. John Lawson refused to do this, saying that he had never received any pay for the land. Partin stayed all night at Lawson's. The next morning, G. P. Lawson, who was there, and G. B. Detherage, who was a neighbor, went to the village of Boston, which was not far off, and there G. P. Lawson signed his father's name to the bond. It was then returned to Partin, and after this Partin sold it to Williams. Partin was not present when G. P. Lawson signed his father's name to the bond, but he evidently knew that it was to be done. G. P. Lawson received nothing for signing his father's name to the bond, and evidently signed it because he had sold the land to Frazier and had received the pay for it; but when he so signed his father's name to the bond he knew that his father had himself refused to sign it. This was about two years after the bond was given. From the time the bond was given, Frazier, Partin, and Williams paid the taxes on the land, and claimed it as their own. There was no dispute about the cutting of timber on it, and no trouble arose until about the time this suit was brought, when it was discovered that a valuable vein of coal underlay the land, and a railroad had been built out near it. After John Lawson moved to Whitley county it was found that a Horn survey interfered with the land that he had sold with his home place, and he went upon the land and did some surveying of that part of the two surveys in controversy which he had sold with the home place. But this controversy as to the location of the Horn survey did not affect that part of the two surveys in question which is in litigation here, and he made no complaint about the timber that had been cut. In the year 1891 he paid a tax receipt for 77 cents for the years 1890 and 1891. This tax receipt does not show what it was paid on, or even that it was paid on land. He appears to have paid no other taxes in Knox county after he left there, and his children paid none after he died, and took no steps to look after the land. The title bond to which G. P. Lawson signed his father's name as well as his own is sufficient to bind his father if it was properly signed. The rule is well settled that an agent may sell land by a written contract, signed for his principal by him under a verbal authority; that is, if the contract of sale is in writing, the agent's authority to make the contract may be shown by parol. If G. P. Lawson had signed his father's name to the bond at the time it was drawn and delivered, there would be no doubt of its validity; but the question is made that he had no authority to so sign it two years afterwards, and after his father had refused himself to sign it. It is insisted for the plaintiff that the father's refusal to sign the bond in person was a revocation of any authority which by parol he had given the son to make the trade, and that, Partin having notice of the revocation, the act of the son in signing his father's name to the bond was void. The refusal of the father to sign his own name to the bond was a refusal on his part to add anything to its obligatory character; but if he had authorized his son to sell the land, and the son had sold it and collected the purchase money, the right of the father to revoke the authority he had conferred after the sale had been made and the notes given for the price had been collected is a very different question. The bond as it stood before the son placed his father's name to it was binding on the father. It showed a sale of the land, and was signed by the son, who was the father's agent. The rule is that the contract is a sufficient memorandum within the statute of frauds where it is signed by the agent. The rule that an auctioneer's signature to his memorandum of the sale of land binds the purchaser has been often declared, not because auction sales are, by the statute, put upon a different footing from other sales, but on the broad ground that the auctioneer is the agent of the seller, and the memorandum made by the agent when signed by him is a sufficient memorandum of the contract to satisfy the statute. The bond as it stood when it was delivered to Frazier was a sufficient memorandum of the contract to take it out of the operation of the statute of frauds, and therefore it is immaterial that afterwards John Lawson refused to sign it himself, or that G. P. Lawson then placed his name to it.
LAWSON et al. v. WILLIAMS.
115 S.W. 730
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