The Opinion of the Court was delivered by
All of the questions presented in this record, have been already settled in this Court, except two, the first of which is presented by the demurrer to the second and fifth pleas, and the second by the demurrer to the first replication. The first question depends upon the proper construction to be given to the concluding clause of the bond set out in the pleas. That is as follows: “But should the said John R. Caldwell, or bis assignee, fail to pay the said sum of money, specified in said notes, within ten days after the same became due, he hereby forfeits all claims to said lots and all the moneys paid thereon, and this bond, in such ev ent, shall be void, both in Jlaw tand equity, and the title to said lots shall continue in the original proprietor, as if no sale had been made.” The defendant contends, that he can take advantage of this clause, and because he did not pay the money as he had agreed to do, he is exonerated from paying it at all. It is argued, that because the obligee, in the event of non-payment, may treat the bond as determined, mutuality requires that the obligor should have the same privilege. This argument refutes itself. It is as much a feto de se, as it would make the bond. To admit the defendant’s position, is to leave everything in his own hands. It allows him to defeat, or make the bond operative, as may best subserve his interest, without any discretion on the part of the obligee. It converts the bond into a naked proposition absolutely binding on the seller, but which the purchaser may accept of reject by the payment or non-payment of the money. By thus putting the entire control in the hands of the latter, all mutuality is destroyed. It was the undoubted intention of both parties, when they inserted this clause, to provide a penalty to insure a prompt performance by the purchaser. By performance he leaves no discretion in the hands of the obligee, but has a right to enforce the bond, while, if he does not, he agrees to leave it optional with the other party to avoid the contract or not. Here was a real mutuality; for the purchaser had the first discretion, and if he placed himself in the power of the party, it was by his own voluntary neglect to pay the money, as he had bound himself to do, and it was but a just penalty for violating his obligation. But this is not a case of first impression. This precise question has been fully settled by a number of decisions in other States. The first case to which we shall refer, is that of Canfield v. Westcott, 5 Cowen, 270; and two other cases are given in a note to that, where the same Court had held the same rule; in the last of which, ( Church v. Ayres,) almost the identical words are used which are found in the avoiding clause of this bond: “Otherwise, these presents to be void both at law and in equity.3’ In all of these cases the Court held that the avoiding clause was inserted for the benefit of the obligee, and that the obligor could not take advantage of his own neglect in the nonpayment of the consideration. The same construction was given to a similar clause in the case of Manning v. Brown, 1 Fairf. 49. The same principle was sustained in Kentucky, in Barbour’s Ex’rs v. Brookie, 3 J. J. Marsh. 511. But it hardly requires authority to support what is so easily demonstrated by reason.
The next question is perhaps of greater importance, and it is certainly of more difficult solution. This is presented by the demurrer to the replication. That replication admits that neither the plaintiff, nor Sarah Mason, by whose appointment he made the sale and received the notes, had any authority to sell the premises, the fee of which was in Mrs. dllen, who was, at uie time of the sale, a minor, and the ¡vard of Mrs. Sarah Mason, and that as to the ward, the sale was absolutely void, and conferred upon the purchasers no right to the land whatever; but then it avers that soon after he notes were given, the ward became of age, and internarried with Mr. Allen, and that afterwards, and soon after ‘.he maturity of the notes, and before the defendant demanded a deed, or tendered or offered to pay the money, Martha Maria, in whose behalf the sale was professedly made, and ■ier husband and Sarah Mason, executed and tendered a deed for the lots to the defendant, which would have vested in him a perfect title, but that he refused to accept the same or pay,the notes.T.iis pres3its the question, whether a contract, which was not binding upon her at the time it was • made, might -be adopted by her after she became of age, and before it had been repudiated by the purchaser. If a person, professing to act on behalf of another, but without authority, enters into a contract which, for the want of such authority, wrould render the professed agent personally liable, such contract may be adopted by the principal while it is still in force as between the professed agent and the other party. Doyle v. Teas, 4 Scam. A person may as well become an agent by adoption as by original appointment, and by such adoption the responsibilities are shifted from the agent to the principal. A contract, however, which was absolutely void as to all parties, which conferred no rights, and created no liabilities of any sort, could not, I imagine, be adopted by any one so as to make it valid and binding. It then becomes important to inquire whether the agent, by '-whom this contract was made, but without authority, was I personally responsible to the purchaser, and bound to make ] good whatever damages the purchaser might have sustain^¡¡ed, because he tv as unable to get the title for which he con-i; tracted. I know of no reason why this contract should be ! taken out of the general rule, wdiich compels an agent to ’ make good his contract personally, when he contracts without authority. It makes no difference that Mrs. Mason was professing to act as guardian under a legal appointment. If / an administrator or guardian, in his representative capacity, makes a contract or covenent which he has no right to make, and which is not binding upon the estate or ward, he is bound personally to make it good.
In Sumner v. Williams, 8 Mass. 162, as administrators, the parties executed a deed, which was signed and sealed by them in that capacity, and as administrators they covenanted to warrant and defend the premises. They were held liable in their individual capacity, for the reason that they had no authority to bind their intestate’s estate by such a covenant. And in Whiting v. Dewey, 15 Pick. 428, guardians conveyed lands in that capacity, and as guardians, they covenanted ce that Benedict Dewey, deceased, died seized of the premises, and that they, as guardians in right of the said minor, wore lawfully seized of the premises. ” And they were held individually liable on this covenant for the same reason as that given in the other case. The Court said, that “ where parties contract era auter droit, and fail to bind their principals, they are to be held personally responsible. ”
It may be considered as settled, then, that although the sale was void so far as the ward was concerned, it was still binding upon those who made the contract, to whom the purchaser had a right to look for any dÉnages which he might ji sustain on account of his inability to procure the title. This |! was the condition of the contract, and the rights and liabili- |:' ties of the parties, when the acts of the guardian and her ! attorney were adopted, and the deed tendered. Previous to that time, the purchaser had an undoubted right to repudi-i, ate, and deliver up the contract, and demand his notes, bub by doing so he would have lost his claim to indemnity,1 against the agent. This he did not do. If we-could look beyond this replication, and notice the avoiding clause, which is set out in the pleas, we see that both had the right to avoid the contract, the plaintiff on account of the non-payment of the money, and the defendant, for want of authority in the plaintiff to make the sale. But till this right was exercised by some affirmative act, the contract was stifil in force. It was defeasable, but not destroyed. Up to the time the deed was tendered, the defendant retained the right to call upon the plaintiff to make good the contract personally, and while he retained that right, he could not complain, if the sale was adopted by the principal after she became competent to affirm the act, and thus secure to the purchaser the full benefit of his contract.
It would hardly be denied that the tender of a deed would have been a good plea to an action by the purchaseragainst the agent, charging his liability upon the want of authority to bind the ward; and if such a tender would have been a good plea to an action based upon such want of authority, it ought to be a good replication, where the same want of authority is relied upon as a defence. It is a matter of no moment to the purchaser whether he gets his title from the guardian as he had expected, or directly from the ward after she became of age, so as the title was good. If there was any difference, the deed which was tendered him was better than he could have expected from the guardian, for it contains a covenant of warranty, binding upon the ward and her husband, whereas the guardian could not so have bound her. The substance of the purchase was for the title, and not that the title should come through a particular channel. In 1 U. S. Dig. 683, § 213, it is said: “A. covenanted to convey a tract of land to B. by a good warranty deed in fee simple. A. had only a life estate at the time, and he after-wards conveyed by deed with general warranty, all his interest in said tract to his son; and his son and other children, in whom the fee was vested, conveyed to B.: Held, that on tender to B. of such title, A. was entitled to the purchase money of B.” De Choumont v. Forsyth, 2 Penn. 507, is referred to. We have not access to the reported case, and therefore should be unwilling to rely upon it with much confidence as an authority, if the principle asserted were novel or in any way unreasonable. But it comports with what we understand to be familiar principles. Even Equity may enforce the specific performance of a contract, for a sale of land, although he has no title at the time of the sale or even at the time of filing the bill, so as he can make a good title at the time of the decree.
He ought not to complain if he gets that for which he contracted, and in as good a condition as he had a right to expect. We are of opinion that the replication was a good one, and that the proforma decision sustaining the demurrer to it will have to be reversed. We have already seen that the demurrer was properly sustained to the second and fifth pleas.
The judgment is reversed and the cause remanded.