The opinion
Per Curiam: On the 13th day of July, 1872, Cowhick, the administrator of the estate of Adam Wishon, as such administrator, and pursuant to an order of the county court of Scott county, Illinois, sold at public vendue a tract of land belonging to that estate, and appellant bid off the land at $480. The terms of the sale required the purchaser to give a note with personal security for the purchase money, payable one year after date, and secured further by a mortgage upon the land sold. Appellant neglected and refused to consummate the sale by giving the required securities. After a few months the appellee again advertised the land, and sold the same at public vendue to another purchaser (he being the highest bidder at that sale) at the sum of $300. This action was brought on the 10th of Hovember, 1874, to recover damages from appellant for the breach of the contract made by his bid at the first sale.
The defense set up is, the Statute of Frauds. The evidence on the question whether any memorandum in writing (such as required by the Statute of Frauds at the time of the bid) was made and signed by appellant, shows that immediately after the land was bid off by appellant, the administrator, the auctioneers and the appellant went to the office of Hr. Callan, who was doing the writing touching the sale made that day, and Callan proceeded to prepare a deed of the premises to appellant, which was signed by the administrator and left by him. in Callan’s hands, to be handed to appellant when she should have signed the note and the security should have signed it, and when she should have signed the mortgage; and appellant, at the same time, signed a note for the amount bid, and that was left in Callan’s hands. The business was not consummated, for the reason that appellant was not at that time ready to produce the personal security to sign the note. Afterwards, she never brought forward any personal security, nor in any other way did she complete the purchase.
The note thus drawn up at Callan’s office, and signed by appellant, recited that she promised to pay Cowhide, administrator. etc., “for land purchased by Elizabeth Work, this day,at administrator’s sale, the sum of $480,” etc.
The deed signed by Cowhide and left with Callan described the land bid for fully.
The evidence as to the fact of appellant having signed the note was contradictory. Cowhide swore he saw her sign it, and she swore she did not sign it, nor authorize any one to sign it.
These witnesses having testified in the presence of the court below, and the court having found for plaintiff, the majority of the court are not disposed to disturb the finding, and are of opinion that the proof shows that the requirements of the statute are shown to have been complied with; that the making of the deed and' signing of the note may very properly be regarded as one transaction. The objection that appellant was a married woman at the time of the bid, and so continued until the trial, came too late. It was first made on a motion for a new trial, and can not prevail. To avail as a defense, it should have been pleaded.
The judgment is affirmed.
Judgment affirmed.