(dissenting). The bill shows that Wm. H. Gainer, on the 13th of March, 1888, was the owner of the lands described in the bill, and that he and his brother, James, were partners in the timber and mill business, as W. H. Gainer & Co., and that, according to complainant’s best information and belief (the averment not being made that it was a fact), Joe Beall and Mary Ellis jvere also partners in said firm; that on the *223date named, said Beall was acting as general manager of the business of said partnership, and was in the actual charge and control of said business, and as such, was in possession of said lands.
It is further alleged that on or about the 13th of March, 1888, said Beall, “in his capacity of general manager for said firm,” of the lands described, and “representing said partnership, agreed, promised, and contracted with complainant, to sell and convey to him said lands,” on the terms set out in the fourth paragraph of the bill; and the averment is made that ‘“said contract with reference to the sale of said lands, as herein set out, was not in writing, but was made verbally.”
Complainant avers that, not knowing that Beall was authorized to make said contract, he, complainant, informed W. H. Gainer of the trade, and he said it Avas all right; that said Beall, acting as general manager for said W. H. Gainer & Co., and by and Avith their knowlege and consent, placed complainant in the possession of said lands, in April, 1888, and since that time, and up‘to the filing of this bill, on the 13th of February, 1906, he has continually resided upon said lands and held the actual and notorious possession of them under claim of ownership.
The bill further avers that in the year 1889, or 1890, the said W. H. Gainer, Avithout complainant’s fault, discharged complainant from the service of Gainer & Bro., “and declined, failed and refused to make Avith complainant any settlement” either Avith the firm of Gainer & Co., or Avith the neAV firm of Gainer & Bro.
It is further shown that, in 1888, W. M. Gainer and James Gainer mortgaged said land to one Henry Baars, which mortgage was foreclosed by Baars in chancery, and the lands were purchased by The Pensacola Land Company, and they were sold by them, and successive *224sales and conveyances Avere made to other third parties, the last purchasers being Sellers, Ballard & Co., made parties, with other purchasers, to this bill, each of Avhom denies the right of complainant to á conveyance of said lands.
The bill fails to aver that said W. H. Gainer placed complainant in possession, or has ever recognized complainant’s right or title to the land, or that complainant has paid him the purchase money therefor; or that said Beall, as his agent, or the agent of any firm of Avhich he Avas a member, had any Avritten authority to sell or dispose of said lands to complainant.
It is shown that on the 26th of December, 1903, the Berry Lumber Company, one of the defendants, brought ■suit in the Geneva, circuit court against complainant, to recover said lands, which suit is still pending.
The prayer of the bill was for a perpetual injunction against W. H. Gainer, and the other defendants, from' bringing or prosecuting any suit for the recovery of said lands, and that complainant’s contract for the purchase of the same, be specifically enforced.
A motion Avas made to dismiss the bill for want of equity, which motion the chancellor granted, and dismissed the bill. The appeal is to reverse that decree.
The contention of the defendant is that, without such written authority, any contract made by Beall to sell or dispose of said lands was void, as offensive to the statute of frauds; that, eAren if he had been armed Avith such Avritten authority, the bill having been filed more than 10 years after said contract was made, the cause of action, if it ever existed, is barred by the statute of limitations of 10 years, and that the bill was, also, properly dismissed for want of equity on account of the laches of complainant, for the reason that 18 years, or more, have elapsed since the contract was entered into, and the filing of the bill.
*225The contention of complainant’s counsel is that the statute of frauds does not apply, and that laches and limitation of 10 years against complainant cannot be invoked, because complainant when he made the contract with Beall, as the general manager of W. H. Gainer & Co. for the sale of said lands, was by said Beall placed in possession of the lands, which he has since retained.
The case of Elliott v. Bankston, Post, 45 South. 173, seems to sustain the position of defendants as to the statute of frauds. Section 2152 of the Code of 1896 provides that every agreement is void, for the sale of property, unless the same is in writing and subscribed by the party to be charged therewith, or by some other person thereunto lawfully authorized in writing; and subdivision 5 of that section ingrafts an exception in favor of leases for a term not longer than one year, unless the purchase money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller.
In the case referred to, it was said: “The letter of the exception requires that the seller put the purchaser in possession of the land. No provision is made for the performance of this duty by another. * * * Assuming that the duty may be committed to an agent, we think there is no other construction possible or wise, than that the agent must hold the written authority of the seller, if his act of putting the purchaser in possession is to invoke the benefit of the exception. If no written authority to the agent were requisite, the essential act by which the condemnation of the statute is avoided would rest in parol; a condition against which the statute is primarily directed, and to forbid which is the idea for its existence.”
It is not denied that Beall had no written authority to make the sale to complainant, nor is it shown that any of the purchase money was paid to W. H. Gainer. *226This case seems to settle the contention as to the statute of frauds in favor of defendants; and recognizing the force of the decision to that end, the complainant’s counsel vigorously assails that decision, and insists that it' be overruled. This we are not convinced we ought to do.
Perhaps nothing more need be said to sustain the decree of the chancellor.
The great delay of complainant to assert his rights by appropriate action — some 18 years — places the ban of laches upon him, from which his averment of possession does not relieve him. He knew, all the while, he had nothing but an oral contract entered into by an agent; that Gainer did not during all that time recognize his right; that he had assumed to mortgage the property, and that in 1888, or 1890, as the bill avers, he discharged complainant from the service of Gainer & Bro., and declined and refused to make with complainant any settlement with the firm of Gainer & Company or with Gainer & Bro. — Davis v. Williams, 121 Ala. 547, 25 South. 704; Ashurst v. Peck, 101 Ala. 508, 14 South. 541; Haggerty v. Elyton Land Co., 89 Ala. 428, 7 South. 651; Gentry v. Rogers, 40 Ala. 442; Cole v. Birmingham U. R. Co., 143 Ala. 427, 39 South. 403; Scruggs v. Decatur, etc., Co., 86 Ala. 173, 5 South. 440.
It is unnecessary to consider the statute of limitations of 10 years, though, possibly, that is also applicable.
McClellan, J., concurs.