be in behalf of his principal, the principal is not bound by the deed, although he who made it is bound."97

(b) Parol enlargement or change of sealed authority.It follows, of course, from this rule, that verbal directions or authority from a principal cannot enlarge or change an authority under seal, for which a seal is essential.98 This does not apply, however, where the seal is unnecessary and may be rejected as surplusage.99

(c) Instrument executed in the presence and by direction of another. Authority under seal is not necessary to enable a person to execute an instrument under seal for another, where he does so in his presence and by his direction or authority, for in such a case, as we have seen,100 there is, in law, no agency at all, but the instrument is deemed just as much the direct and personal act of the party for whom and by whose direction it is executed, as if signed and sealed by his own hand.101 "The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers,

97 Gordon v. Bulkeley, 14 Serg. & R. (Pa.) 331.

98 Spofford v. Hobbs, 29 Me. 148, 48 Am. Dec. 521; Minnesota Stoneware Co. v. McCrossen, 110 Wis. 316, 84 Am. St. Rep. 927.

See post, § 53(f).

100 Ante, § 15.

101 Rex v. Longnor, 4 Barn. & Adol. 647; Ball v. Dunsterville, 4 Term R. 313; Hudson v. Revett, 5 Bing. 368; Lewis v. Watson, 98 Ala. 479, 39 Am. St. Rep. 82; Jansen v. McCahill, 22 Cal. 563, 83 Am. Dec. 84; Videau v. Griffin, 21 Cal. 390; Reinhart v. Miller, 22 Ga. 402, 68 Am. Dec. 506; Croy v. Busenbark, 72 Ind. 48; Meyer v. King, 29 La. Ann. 567; Frost v. Deering, 21 Me. 156; Gardner v. Gardner, 5 Cush. (Mass.) 483, 52 Am. Dec. 740; Wood v. Goodridge, 6 Cush. (Mass.) 117, 52 Am. Dec. 771; Johnson v. Van Velsor, 43 Mich. 208; Eggleston v. Wagner, 46 Mich. 610; McMurtry v. Brown, 6 Neb. 368; Kidder v. Prescott, 24 N. H. 267; Cushman v. Wooster, 45 N. H. 410; Mutual B. L. Ins. Co. v. Brown, 30 N. J. Eq. 202; Mackay v. Bloodgood, 9 Johns. (N. Y.) 285; Blood v. Goodrich, 9 Wend. (N. Y.) 68, 24 Am. Dec. 121; Fitzpatrick v. Engard, 175 Pa. 396; Hart v. Withers, 1 Pen. & W. (Pa.) 285, 21 Am. Dec. 382; Fichthorn v. Boyer, 5 Watts (Pa.) 159, 30 Am. Dec. 300; Kennedy v. Gramling, 33 S. C. 367, 26 Am. St. Rep. 676. Compare Rockford, R.

and she merely uses the hand of another,

instead

of her own, to do the physical act of making a written sign."102 This principle applies where a blank in a bond or deed of conveyance is filled up in the presence and by direction or authority of the obligor or grantor.1

103

(d) Rejection of seal as surplusage. And if an agent, without authority under seal, executes under seal an instrument which is not required to be under seal, it will be valid. as an unsealed instrument, for the seal will be disregarded as mere surplusage.104

I. & St. L. R. Co. v. Shunick, 65 Hl. 223; Wallace v. McCollough, 1 Rich. Eq. (S. C.) 426.

102 Per Chief Justice Shaw in Gardner v. Gardner, 5 Cush. (Mass.) 483, 52 Am. Dec. 740.

103 Post, § 53. Signing of the grantor's name to a deed by a stranger by direction of the grantor at the time is good, although the signing is not in the immediate view of the grantor. It was so held, for example, where a person took a deed to the grantor, to the room in which she was dressing, and by her direction immediately signed her name to the same on the gate post near the door, but not in her view. Reinhart v. Miller, 22 Ga. 402, 68 Am. Dec. 506. A deed signed "A. per B.," will be presumed to have been signed in the presence and by direction of A., where it appears that he was unable to read or write, and B. was in the habit of signing deeds for him, and the person claiming under the deed has been in the undisturbed possession of the land for years. Kennedy v. Grambling, 33 S. C. 367, 26 Am. St. Rep. 676.

104 Anderson v. Tompkins, 1 Brock. 456, Fed. Cas. No. 365; Mor-. row v. Higgins, 29 Ala. 448; Ledbetter v. Walker, 31 Ala. 176; Love v. Sierra Nevada Lake W. & M. Co., 32 Cal. 639, 91 Am. Dec. 602; Dutton v. Warschauer, 21 Cal. 609, 82 Am. Dec. 765; Drumright v. Philpot, 16 Ga. 424, 60 Am. Dec. 738; Ingraham v. Edwards. 64 Ill. 526; Walsh v. Lennon, 98 Ill. 27; Tapley v. Butterfield, 1 Metc. (Mass.) 515, 35 Am. Dec. 374; Milton v. Mosher, 7 Metc. (Mass.) 244; Dickerman v. Ashton, 21 Minn. 538; Thomas v. Joslin, 30 Minn. 388; Adams v. Power, 52 Miss. 828; Despatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205, 37 Am. Dec. 203; Wagoner v. Watts, 44 N. J. Law, 126; Long v. Hartwell, 34 N. J. Law, 116; Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330; Reed v. Van Ostrand, 1 Wend. (N. Y.) 424, 19 Am. Dec. 529; Wood v. Auburn & R. R. Co., 8 N. Y. 160; Everit v. Strong, 5 Hill (N. Y.) 163; Blacknall v. Parish, 59 N. C. (6 Jones Eq.) 70, 78 Am. Dec. 239; Baum v. Dubois, 43 Pa. 260; Robinson v. Crowder, 4 McCord (S. C.) 519, 17 Am. Dec. 762; Marshall v. Rugg, 6 Wyo. 270. And see un

(e) Equities may arise from execution of an authority not under seal. Although the deed of attorney in fact authorized by parol to convey land will not pass the legal title, when authority under seal to convey land is necessary it is sufficient to raise an equity in the grantee which will entitle him to a deed, being treated as a contract for a deed, for which a seal is not necessary, and which will prevail, not only as against the principal, but also as against subsequent purchasers from the principal who do not occupy the position of bona fide purchasers for value and without notice.105 Thus, if an agent who is only authorized to execute a contract for the sale of land sells the land, receives the purchase money, places the purchaser in possession, and executes an absolute deed for it, the transaction amounts to a valid verbal sale, and creates a valid equitable title in the purchaser and his successors in interest.106

(f) Authority of partner. There is a direct conflict of authority as to the power of a partner to bind the firm by an instrument under seal, when his authority from the other partners to do so is not under seal. Perhaps all the courts agree that a partner has no implied authority to bind his co-partners by an instrument under seal, merely by virtue of the relation, but there must, at the least be a special authority, in some form, from his co-partners, or else a ratification.107 Some of the courts have gone further than this, and,

der the Missouri statute, Lehman v. Nolting, 56 Mo. App. 549. This applies where a partner, without special authority under seal, executes a contract under seal which is not required to be under seal, and which may be sustained as an unsealed instrument within his general authority as partner. See the cases above cited. 105 Irvin v. Thompson, 4 Bibb (Ky.) 296; Jackson v. Murray, 5 T. B. Mon. (Ky.) 184, 17 Am. Dec. 53; Watson v. Sherman, 84 Ill. 263; Groff v. Ramsey, 19 Minn. 44; Hersey v. Lambert, 50 Minn. 373; Jones v. Marks, 47 Cal. 242; Ledbetter v. Walker, 31 Ala. 175; Morrow v. Higgins, 29 Ala. 448. Compare Allis v. Goldsmith, 22 Minn. 123.

106 Jones v. Marks, 47 Cal. 243.

107 England: Harrison v. Jackson, 7 Term R. 207.

Illinois: Walsh v. Lennon, 98 III. 27.

Kentucky: Trimble v. Coons, 2 A. K. Marsh. 375, 12 Am. Dec.

C. & S.-9.

applying the general common-law rule, have held that a partner cannot bind his co-partners by an instrument under seal, even though he may be specially authorized by them to do so, unless such special authority is under seal.108 The weight of authority, however, is against this view, and to the effect that an instrument under seal executed by one partner in the firm name will bind the firm, if an express authority from or confirmation by the other partners can be established, whether such authority or confirmation be verbal,

Maryland: Williams v. Hodgson, 2 Har. & J. 474, 3 Am. Dec.

563.

Massachusetts: Van Deusen v. Blum, 18 Pick. 229, 29 Am. Dec. 582; Russell v. Annable, 109 Mass. 72, 12 Am. Rep. 665; Cady v. Shepherd, 11 Pick. 400, 22 Am. Dec. 379.

Michigan: Koch v. Endriss, 97 Mich. 444.

New York: Skinner v. Dayton, 19 Johns. 513, 10 Am. Dec. 286. See, also, Wells v. Evans, 20 Wend. 251, 255; Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330.

Ohio: McNaughten v. Partridge, 11 Ohio, 223, 38 Am. Dec. 731. Pennsylvania: Gerard v. Basse, 1 Dall. 119, 1 Am. Dec. 226; Hart v. Withers, 1 Pen. & W. 285, 21 Am. Dec. 382; Schmertz v. Shreeve, 62 Pa. 457, 1 Am. Rep. 439.

South Carolina: Robinson v. Crowder, 4 McCord, 519, 17 Am. Dec. 762.

Tennessee: Turbeville v. Ryan, 1 Humph. 113, 34 Am. Dec. 622. A partner, however, may appoint another, by an instrument under seal, as attorney to discharge a debt due the firm, an act which he might himself do alone, for the rule stated in the text only applies where the firm is sought to be charged by an instrument under seal. Wells v. Evans, 20 Wend. (N. Y.) 251, 255. And a partner may transfer the whole stock in trade of the partnership bona fide in payment of debts of the firm, especially where his partner has absconded and the fact that the assignment is under seal is immaterial. Deckard v. Case, 5 Watts (Pa.) 22, 30 Am. Dec. 287; Robinson v. Crowder, 4 McCord (S. C.) 519, 17 Am. Dec. 762.

108 Steiglitz v. Egginton, 1 Holt, N. P. 141; Turbeville v. Ryan, 1 Humph. (Tenn.) 113, 34 Am. Dec. 622; Napier v. Catron, 2 Humph. (Tenn.) 534; Hart v. Withers, 1 Pen. & W. (Pa.) 285, 21 Am. Dec. 382. See, also, Trimble v. Coons, 2 A. K. Marsh. (Ky.) 375, 12 Am. Dec. 411.

or in writing not under seal, or implied from the circumstances.109

In all jurisdictions, no doubt, the fact that a partner has no authority under seal to execute a sealed instrument on behalf of the firm does not render invalid an instrument under seal executed by one partner in the presence and by the direction or verbal authority of his co-partners. And where a partner, authorized by parol, or acting in pursuance

109 Story, Partn. §§ 121, 122.

England: Brutton v. Burton, 1. Chit. 707.

United States: Darst v. Roth, 4 Wash. C. C. 471, Fed. Cas. No. 3,582.

Georgia: Drumright v. Philpot, 16 Ga. 424, 60 Am. Dec. 738. Illinois: Edwards v. Dillon, 147 Ill. 14, 37 Am. St. Rep. 199; Peine v. Weber, 47 Ill. 41.

Massachusetts: Cady v. Shepherd, 11 Pick. 400, 22 Am. Dec. 379; Van Deusen v. Blum, 18 Pick. 229, 29 Am. Dec. 582; Russell v. An nable, 109 Mass. 72, 12 Am. Rep. 665; Holbrook v. Chamberlin, 116 Mass. 161, 17 Am. Rep. 146.

Michigan: Koch v. Endriss, 97 Mich. 444; Fox v. Norton, 9 Mich. 207.

New York: Skinner v. Dayton, 19 Johns. 513, 10 Am. Dec. 286; Pettis v. Bloomer, 21 How. Pr. 317; Gram v. Seton, 1 Hall, 293; Renwick v. McAllister, 5 N. Y. Leg. Obs. 16. Among the New York cases which are sometimes cited to the contrary are Blood V. Goodrich, 9 Wend. 68, 24 Am. Dec. 121, 12 Wend. 525, 27 Am. Dec. 152; Wells v. Evans, 20 Wend. 251; Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330. But these cases are not in point. In Blood v. Goodrich, the court expressly called attention to the fact that the parties were not partners, but tenants in common merely. In Wells v. Evans, there is a mere dictum, or rather a mere assumption, that a partner cannot bind another partner by seal, and, further than this, on a careful consideration of the case it is evident that the learned judge was referring merely to the implied power of a partner. Worrall v. Munn was not a case of partners at all.

Pennsylvania: Bond v. Aitkin, 6 Watts & S. 165, 40 Am. Dec. 550; Johns v. Battin, 30 Pa. 84, 89. Compare Hart v. Withers, 1 Pen. & W. (Pa.) 285, 21 Am. Dec. 382.

110 Ball v. Dunsterville, 4 Term R. 313; Mackay v. Bloodgood, 9 Johns. (N. Y.) 285; Fox v. Norton, 9 Mich. 207; Koch v. Endriss, 97 Mich. 444; Hart v. Withers, 1 Pen. & W. (Pa.) 285, 21 Am. Dec. 382; Fichthorn v. Boyer, 5 Watts (Pa.) 159, 30 Am. Dec. 300; Overton v. Tozer, 7 Watts (Pa.) 333.