Dorr, petitioner, &c. letting for a term of years, or decree the sale, conveyance, or other disposition of such real estate or interest, to be made by the infant, or the guardian or guardians appointed by said Court for such infant, in such manner, and with such restrictions as shall be deemed expedient." Laws 1840, p. 26. The language of the statute is very broad, particularly that part of it which says, "or for any other peculiar reasons or circumstances." It is none too broad, however, so long as the power of the Court is used with proper discretion. Other cases than those particularly named might occur, in which it would, clearly, be for the interest of the minor to part with a portion of his estate. Where his title is doubtful, a compromise might, under certain circumstances, be more for his interest than to run the hazard of litigation, with the expense attending it. Something of this kind seems to have been the object of the petitioner, in making the agreement with Mr. and Mrs. Scott. But, before the Court will authorize a sale, or other disposition, to be made of a minor's estate, it must be satisfied, from the facts before it, of the necessity and propriety of the measure. It must see that the interest of the minor requires it; and all the facts and circumstances, rendering it necessary, should be fully stated in the petition. In this the petition is clearly defective. It does not show of what estate Melvin Dorr died seized, or what disposition was made of it by his will, or what interest his infant daughter took under the will. Nor does it state on what grounds the widow, after the death of her daugh[*148] ter, Mary L. Dorr, *claimed her portion under the will. The Court cannot judge of the benefits that would be likely to result to the minor from the agreement, or the necessity there was for making it, until it is put in possession of these facts. There is another objection to granting the prayer of the petitioner. It is this: Ie, in effect, asks the Court to ratify an agreement entered into by him two years and a half ago. He does not ask for an order authorizing him to sell his ward's estate, or to transfer a part of it to perfect an undisputed title to the balance; but that the Court will enable him to perform Chamberlin v. Darragh. his agreement with Mr. and Mrs. Scott, made in September, 1840. He should have sought the aid of the Court before he concluded the agreement. The precedent would be a bad one. Should it be once established, it is to be feared that guardians might be induced by it to make improvident sales of the real estate of their wards, with the expectation that their acts would be confirmed by this Court. Besides, a guardian thus situated would not stand in the most favorable position to represent the interest of the minor; he might be prompted more by his own interest, than a desire to benefit his ward. Prayer of petition denied. *OLMSTED CHAMBERLIN v. DANIEL DARRAGH, [*149] CORNELIUS DARRAGH et al. Equity will not decree the specific execution of a written contract for the sale of land made by a special agent, who has exceeded his authority.1 Neither will it require the agent to convey his equitable interest in the land as cestui que trust, he having acted only as the agent of the trustee in selling the land, although the contract on its face, does not disclose the agency; the bill charging that the contract was made by him as the agent of the trustee, and not that it was made by him in his own right. BILL for the specific performance of a contract for the sale of land. The facts of the case appear in the opinion of the Court. M. L. Drake, C. Draper and Wm. P. Draper, for complainant. 0. D. Richardson and J. B. Hunt, for defendants. 1 Absence of proof of written authority to an agent to execute a land contract is unimportant where the contract has been fully ratified by both parties by demand and receipt of payment, and by possession and improvement. Hanchett r. McQueen, 32 Mich., 22. Chamberlin v. Darragh. THE CHANCELLOR. The bill in this case is filed for the specific performance of a contract entered into between the complainant and Daniel Darragh, one of the defendants, October 26th, 1838. The contract is in these words: "Whereas, I, Daniel Darragh, have this day sold to O. Chamberlin, the following described lands in the village of Pontiac, viz: Out-lots numbered 16, 17 and 20, in the southeast quarter of section 32, and out-lots numbered 11 and 13, on the southwest quarter of section 28, township 3 north, of range 10, east, being lands bought by the late Archibald Darragh, of the Pontiac company, for the sum of nine hundred dollars, to be paid as follows: two hundred dollars down, or when the deed is delivered, the balance in three equal [*150] annual installments, with interest, to be secured by a mortgage on the same, by said Chamberlin; and I, the said Chamberlin, do bind myself to comply with, and fulfill the above contract. Dated, Pontiac, 26th October, 1838." (Signed,) "D. DARRAGH, The bill states that the several lots named in the contract were conveyed by the Pontiac company, in 1832, to Archibald Darragh, who died seized in 1836, leaving a last will and testament, and Cornelius Darragh sole executor thereof, with authority to sell and dispose of the real estate, and divide the proceeds, after paying the debts, of the testator, between Daniel Darragh and Margaret Baird; one-half to Daniel Darragh, his heirs and assigns, and the other half to Margaret Baird, for, and during her natural life, and, after her death, to Daniel Darragh, his heirs and assigns. And, that Daniel Darragh made the aforesaid contract with complainant, by virtue of a power of attorney, from the executor and Mrs. Baird, to sell the land. Daniel Darragh, by his answer, admits the making of the contract, but denies he had any authority from the executor and Mrs. Baird to sell the land. He admits he was authorized by the executor to make a contract for the sale of the land, subject to his approval, and says he so informed complainant at the Chamberlin v. Darragh. time the contract was made. Cornelius Darragh, the executor, admits he authorized Daniel Darragh, to bargain for a sale of the land, but says that the written power he gave him, reserved to himself the right to confirm or reject the sale, as he should think best; and that, on being informed of the contract made with complainant, he refused to ratify it. The power under which Daniel Darragh acted, is not produced. The executor states that it is either lost or mislaid.* Daniel Darragh says it was destroyed on his [*151] turn to Pittsburgh, where the executor lives. The written agreement does not refer to it, nor is the agreement signed by Daniel as agent or attorney for the executor. The bill, however, shows that the complainant treated with him throughout, as the agent of the executor; and the contract must be viewed in that light, and the same as if it referred to the written power, and were signed by Daniel Darragh as the agent or attorney of the executor. This makes it necessary to inquire into the extent of the agent's authority. Now, both Cornelius and Daniel Darragh state in positive terms, that it authorized the latter to make a conditional sale only, subject to the approval of the executor, and not an absolute sale. Their answers on this point, are responsive to the bill, and there is no evidence disproving them. The Court must, therefore, take it for granted such was the nature of the power under which the contract was made, and, that being the case, the complainant is not entitled to a decree for a specific performance, the executor never having given his assent to the contract. Daniel Darragh was a special agent, and nothing more. He was only authorized to make a contract for the sale of the land, subject to the approval of his principal; and no rule of law is better settled than that a particular or special agent cannot bind his principal when he exceeds his authority. Atwood v. Munning, 7 Barn. & Cres., 278; Fenn v. Harrison, 3 T. R., 757; 1 Pet. R., 264. Every contract for the sale of land is void, unless reduced to writing, and signed by the party, or some person by him duly authorized in writing. R. S., 329, § 8. A person purchasing real estate of an agent, should call on him for his written authority Sawyer v. Studley. to sell. This was unnecessary in the present case, for it [*152] appears from the testimony that the authority was produced when the contract was signed, but that complain ant did not look into it or examine it. It is said that, if the executor is not bound by the contract, still Daniel Darragh should be required to convey his equitable interest in the premises under the will of Archibald Darragh. I cannot think so. The contract was for the purchase of the legal estate, or land itself, of the executor, and not the interest of Daniel Darragh, as cestui que trust, under the will. It would be making a new contract for the parties, instead of decreeing the execution of one made by themselves. There is no analogy between this case, and that class of cases where the complainant may, if he choose, have a conveyance of such part of the premises as the defendant can make a good title to, his title failing as to a part. Bill dismissed with costs. [*153] *SAWYER et al. v. STUDLEY et al. It is the termination of the suit which entitles one party to costs against the other, and the law then in existence, is the rule by which they are to be ascertained. A different rule prevails between attorney and client.' Affidavits are required in certain cases, before taxation of costs. PETITION for re-taxation of costs. E. S. Lee, for the petition. II. II. Emmons, contra. THE CHANCELLOR. This case was decided in January last, and by the decree of the Court, costs were adjudged to the defendants. The solicitor's services were rendered in part, after 1 See Comp. Laws, 1871, §§ 7385, 7386. |