This appeal is from a judgment under which appellants, with the exception of Clinton Parke, were required specifically to perform a contract and to convey to appellee, G. R. Spurlin, their undivided interests in a parcel of real estate.
Appellants, Pressure (or Prussia) Parke, Mary Parke Baker, Laura Parke, Clinton Parke and Curtis Parke, obtained by inheritance undivided interests in a 44 acre farm situate in Madison County.
Curtis Parke, purportedly acting as agent for the other heirs, entered into a contract with A. T. Rose and Roy Rowland, who operated under the firm name of Rowland Auction Company, to sell the farm at auction. The form of this contract was not unusual and was signed by A. T. Rose of the auction company and by Curtis Parke as "agent for the Parke heirs.' No direct proof was introduced to show the manner by which Curtis Parke was authorized to offer the farm for sale, but the conduct of the parties, which will be discussed later, leads us to believe that he was asked by all the heirs, with the exception of Clinton Parke, to handle the transaction.
The property was surveyed and platted and it was advertised that "this tract of land has a long pike frontage and will be subdivided into several nice building sites and baby farms * * *.'
The auction was held on September 10, 1949, and all of the heirs were present except Clinton Parke. The appellee, G. R. Spurlin, who owns a farm adjoining the property on the north, purchased five of the subdivided tracts, the perimeter to all of which encloses a rectangular tract of land adjacent to his property. The price was $3,180 and a down payment of $1,000 was made. A memorandum of sale was signed, the important parts of which read as follows:
"Contract, Terms and Memorandum of Auction Sale Sold by Rowland Auction Company
"This Property: Being a 16 acre tract located 3 miles from Richmond on R. 227
"Terms: $1000 cash as soon as property is sold * * *
"Possession: Full Possession shall be given on or about thirty days.
"Bal. to be paid is $2180.00'
The acceptance by the parties reads as follows:
"I, G. R. Spurlin, have this day purchased at public auction, the above described property; have paid the first payment by check and agree to ...