J. W. GRIFFIN
v.
G. L. TURNER and wife, Amelia S. Turner; Willie E. Turner and wife, Ethel W. Turner; E. R. Turner (unmarried); Odette T. Webb and husband, L. G. Webb; H. D. Turner and wife, Maude B. Turner; Olla T. Spruill and husband, Phillip Spruill; Bessie T. Hyatt and husband, T. D. Hyatt; C. P. Turner and wife, Maidie Turner.
No. 28.
Supreme Court of North Carolina.
September 17, 1958.*831 LeRoy & Goodwin, Elizabeth City, for plaintiff appellant.
W. S. Privott, Edenton, for defendant appellee L. G. Webb.
Worth & Horner, Elizabeth City, for all defendants other than L. G. Webb.
RODMAN, Justice.
Plaintiff offered evidence sufficient to establish the execution of the writings of 6 April and 11 April, a demand for performance, and defendants' refusal to convey. He likewise offered evidence tending to show that subsequent to the institution of the action defendants had cut and removed timber. No evidence was offered to show that the defendants, other than L. G. Webb, W. E. Turner, and G. L. Turner, authorized the execution of the paper writings on which plaintiff relies.
Plaintiff, in his brief filed here, concedes that the judgment of nonsuit is correct as to the defendants other than the defendants Webb and W. E. and G. L. Turner. This concession, correctly made, leaves for decision these questions: (1) Are defendants Webb and Turner liable for breach of an implied warranty of authority to convey the interest of their codefendants, and (2) Is plaintiff entitled to enforce the contract as to the shares of defendants W. E. and G. L. Turner.
The answer to the first question is found by an examination of the writings on which plaintiff predicates his right to relief. These writings show that Webb was acting as agent for the administrators. It was the administrators who appointed Webb as their agent. In the writing of 6 April there is nothing which purports to assert authority to act for the heirs individually. Plaintiff knew that Webb was acting only as agent for the administrators. He knew that the paper which appointed Webb as agent came from the makers as administrators and not as agents for the heirs.
Title to real estate, upon the death of an owner, vests in the heirs and not in the administrators. The personal representative has no power as such to convey. Parker v. Porter, 208 N.C. 31, 179 S.E. 28; Floyd v. Herring, 64 N.C. 409. Plaintiff was aware of this fact when he paid his $10 to Webb. The receipt given by Webb calls for payment of the balance of the purchase price when good and sufficient deed was tendered by the heirs at law and not by the administrators for whom Webb acted.
Plaintiff does not assert that any express warranty of authority existed to bind the heirs. His position is that when one contracts as an agent to convey land, the law will imply a warranty of authority to act. The law does imply a warranty when the party with whom the contract is made does not know the true facts and does not know that in truth and in fact the person sought to be bound is lacking in authority. When, however, the person who claims to be protected knows that the person in whose name and behalf the contract is made in fact has no authority to act, the law will not imply a warranty to act. It would be palpably unjust to create a fiction for the benefit of one who acted with knowledge of facts which are at complete variance with the proposed fiction. Hence, we have heretofore held that when one contracts as administrator to convey land, who has no personal right therein, he is not liable on an implied warranty because the heirs at law are not bound by the contract. Hedgecock v. Tate, 168 N.C. 660, 85 S.E. 34, Ann.Cas.1916D, 449. For the same reason a guardian who contracts to convey the property of his ward is not liable on an implied warranty of authority. Leroy v. Jacobosky, 136 N.C. 433, 48 S.E. 796, 67 L.R.A. 977. These cases but illustrate the principle which finds full support in numerous other cases. Joyner v. Crisp, 158 N.C. 199, 73 S.E. 1004; Love v. Harris, 156 N.C. *832 88, 72 S.E. 150, 36 L.R.A., N.S., 927; Hite v. Goodman, 21 N.C. 364; Potts v. Lazarus, 4 N.C. 180; Fuller v. Melko, 5 N.J. 554, 76 A.2d 683, 3 C.J.S. Agency § § 211, 212, pp. 117 and 118; 2 Am.Jur. 249.
Application of the law to the facts of this case brings a negative answer to the question propounded with respect to the liability of defendants on the asserted implied warranty to represent the heirs.
This leaves for determination the force and effect of the writings with respect to the shares of the defendants W. E. Turner and G. L. Turner.
As noted above, the reason for denying the implication of a warranty is knowledge that the contracting party has neither right nor the power to act, but the law is well settled that when one enters into a contract it will be presumed that he did so in good faith and will, so far as lies in his power, comply with his contract.
So when one purporting to act in a representative capacity contracts to convey, the law will imply that so far as his individual interest in the property is concerned he has authority to act in his representative capacity. Woody v. Pickelsimer, 248 N.C. 599, 104 S.E.2d 273, illustrates the rule. If he would exclude individual responsibility he should do so by clear and express language. Bessire & Co. v. Ward, 209 N.C. 266, 183 S.E. 534; Banking Co. v. Morehead, 116 N.C. 410, 21 S.E. 190; Banking Co. v. Moorehead, 116 N.C. 413, 21 S.E. 191.
It is said in 24 C.J. 153: "In the absence of some power contained in the will, or of authority derived from statute or an order of court, neither an executor nor an administrator has any power whatever to sell the real estate of a decedent. An unauthorized conveyance may be enjoined at the suit of heirs or devisees, and a deed made by the representative without authority is void, except as it may operate to pass his own interest in the land as heir or devisee, and cannot affect the rights of other heirs or devisees who seasonably undertake to assert such rights." (Italics supplied.) See also 33 C.J.S. Executors and Administrators § 269, pp. 1285, 1286.
"The deeds to the railroad company, under which complainant claims, were executed by three executors and they contained covenants of warranty by them in their representative capacities. One of the executors was the widow of the deceased owner of the lands and under the will she took a half interest therein. The deeds were void as executors' conveyances because no authority to make them had been procured from the court having jurisdiction; but they nevertheless operated as conveyances of the widow's individual interest." Rannels v. Rowe, 8 Cir., 145 F. 296, 298.
In Parks v. Knox, 61 Tex. Civ. App. 493, 130 S.W. 203, 209, the court said: "But assuming that the conveyance of Boyd and Mrs. Parks, in which they undertook to transfer the land in controversy to Beard and Ezell, was void in so far as it operated upon any title held by them as executors of the estate of W. S. Parks, it does not follow that it was ineffectual for any purpose. Mrs. Parks was not only an executrix, but a joint owner of the land described in her deed; and while she might not be able to transfer any title, acting in her fiduciary capacity, because she had none, her deed would nevertheless invest her grantees with such interest as she owned in her individual right."
Moffitt v. Rosencrans, 136 Cal. 416, 69 P. 87, involved the validity of a lease and option executed by plaintiff as executrix. The court said: "* * * plaintiff's testator died seised of the land in question, leaving a will under which she is the * * * sole beneficial owner of the land in question, and, as she was not empowered by the court to sell the land, her contract with the defendant was binding on her personally."
*833 Dial v. Martin, Tex.Civ.App., 37 S.W.2d 166, 168; Shaw v. Clements, 1 Call., Va., 429; Phillips v. Hornsby, 70 Ala. 414; Millican v. McNeill, 102 Tex. 189, 114 S.W. 106, 21 L.R.A.,N.S., 60, furnish other illustrations of the application of this salutary rule.
On the facts developed at the trial defendants W. E. Turner and G. L. Turner are, as to their respective one-eighth interest, bound by their contract.
As to the defendants W. E. Turner and G. L. Turner: Reversed.
As to remaining defendants: Affirmed.