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It is not generally manifest when the paper merely concludes a witness my hand," as was the case in Austin's adm'x v. Whitlock's ex'ors ; or “witness our hands," as in Anderson v. Bullock 8.c.; Jenkins v. Hurt's commissioners, and Peasley v. Boatwright; the rule of which cases prevails in several other states besides Virginia ; for example in Alabama, Lee v. Adkins, Minor 187; and Texas, Flemming v. Powell, 2 Texas Rep. 226.
But if the instrument be for a purpose which can only be effected by a writing under seal and recorded, as if it be to emancipate a slave or to convey land, then it is considered there is sufficient recognition of the scroll as a seal, when it has been admitted to record upou the grantor's acknowledgment that it is his deed before a court or witnesses ; the witnesses in the latter case certifying at the foot of the instrument, and proving before the court that it was sealed alid acknowledged in their presence. Parks v. Hewlett f.c. 9 Leigh 511; Ashwell v. Ayres fc. 4 Grat. 283.
These rules apply with as much force under the Code of Virginia as under the former statute ; the Code providing (ch. 143, $ 2, p. 580) like the former statute, that "any writing to which the person making it shall affix a scroll by way of seal, shall be of the same force as if it were actually sealed.”
8. Seal of a Corporation.
Provision is made as to the seal of a court or public officer by the Revised Statutes of New York, 2 R. S. p. 404, ch. 7,
95 of 2d edı.; and as to the seal of a court or public office by the Code of Virginia, ch. 16, § 17, clause 12, p. 101.
The seal of a corporation as well as of an individual (who is not a public officer) must in New York be made on wafer, wax or some similar substance. In an action there on a writing, though there be on it an impression in the form of a circle, having within it the name of an incorporated society, yet if the impression be without the use of wax or any other tenacious substance, the writing will not be deemed a specialty. Farmers and Manufacturers Bank v. Haight fic. 3 Hill 493.
In Kentucky, a corporation being deemed an invisible person and as such embraced in a statute providing for persons, it is adjudged that a corporation may therefore adopt and use a scroll as their common seal under the statute of 1797, which like that of Virginia provides that any instrument to which the person making the same shall affix a scroll by way of seal shall be adjudged and holden to be of the same force and ob
ligation as if it were actually sealed. Reynolds' heirs v. Glasgoio academy, 6 Dana 39. In this case, separate scrolls attached to the respective names of trustees of a corporation were considered to have been used as its corporate seal. S. C.
OF THE DELIVERY NECESSARY TO MAKE THE INSTRUMENT A VALID
1. How far date of instrument is evidence of time of its
A deed is made when it is delivered. Barmon v. Jay, 2 McCord 371. It will generally be intended that it was delivered on the day it bears date ; but if it appear to have been executed by delivery on a subsequent day, it will take effect, not from the day of the date but from the day of the delivery. Steele v. Mart, 4 Barn. & Cress. 272; 10 Eng. Com. Law Rep. 331. The date is prima facie but not conclusive evidence of its delivery at that time; the presumption may be repelled by other evidence. Bradford v. Erwin, 12 Iredell 290: Cordle v. Burch, 10 Grat. 482. It is considered no contradiction of the deed to shew when it became a deed. McKenzie v. Roper, 2 Strobhart 308, 9.
2. What words or act constitute a sufficient delivery.
No particular form of words is necessary in the delivery of a sealed instrument. Byers v. McClenechan, 6 Gill & J. 256. If the obligor puts it down for another to take it up, or if there be any act or word from which his intention to put the bond in the obligee's possession may be inferred, that is sufficient. Co. Lit. 36a; I C. & P. 417; 11 Eug. Com. Law Rep. 439; Blackwell's adm'r v. Lane, 3 Dev. & Bat. 116; Methodist Ep. Ch. v. Jaques, 1 Johns. C. R. 456; 17 Johns. 577.
3. Whether instrument can be regarded as delivered by a
party who has never parted with possession of it.
It has been a question, when a deed is duly signed and sealed, and formally delivered with apt words of delivery, but is retained by the party executing it, whether that retention will obstruct the operation of the deed. Moore v. Collins, 4 Dev. 384; Baldwin v. Maultsby, 5 Iredell 505. In England there are many authorities to shew that such a deed will operate, though never parted with by the person who executed it. Barlow v. Hencage, Prec. Ch. 211; Clavering v. Clavering, Id. 235; 2 Vern. 473; 1 Brown's Par. Cas. 122; Naldred v. Gilham, 1 P. Wms. 177; Boughton v. Boughton, 1 Atk. 625. Upon these anthorities it seerns, says Bayley, J., that when an instrument is formally sealed and delivered, and there is nothing to qualify the delivery but the keeping the deed in the hands of the executing party-nothing to shew he did not intend it to operate immediately—that it is a valid and effectual deed, and that delivery to the party who is to take by it, or to any person for his vise, is not essential. Garnons v. Knight, 5 Barn. & Cress. 671; 12 Eng. Com. Law Rep. 356, 7; Exton v. Scott, 6 Sim. 31; 9 Cond. Eng. Ch. Rep. 155.
4. Delivery may be valid, though not in presence of grantee
or obligee; to whom it may be made for him ; presumption of acceptance.
It is not essential to the valid delivery of a deed that the grantee be present, and that it be made to or accepted by him personally at the time. Hatch &c. v. Hatch fic. 9 Mass. 310. It may be delivered to the donee's attorney, or to a stranger for the donee. Tate v. Tate, 1 Dev. & Bat. Eq. 22; Iredell v. Barbee, 10 Iredell 250; Gashell v. King, 12 Iredell 216. Even a delivery by a husband to his wife for her son has been sustained. S. C.
A deed lodged with the clerk of a court or register, for the use of the grantee, is clearly a good delivery if the grantee afterwards assent. Harrison g'c. v. Trustees, 12 Mass. 461; Chapel v. Bull, 17 Id. 220; Com. v. Selden, 5 Munf. 160.
There is, however, a case in Massachusetts of a sealed instrument, from a father to his son, which, having been delivered by the father to a subscribing witness to be carried to the register of deeds, was recorded as a deed and returned to the witness before the death of the son, and nevertheless was held inoperative on the ground that there had not been a sufficient delivery before that event; the father then took the deed back and cancelled it. Maynard v. Maynard, 10 Mass. 456. This case can scarcely be regarded as consistent with other decisions in the same state. Hedge v. Drew, 12 Pick. 141; Mills v. Gore, 20 Id. 28; Foster f. wife v. Mansfield, 3 Metcalf 414, 15; O'Kelly foc. v. O'Kelly, 8 Id. 439; Shaw v. Hayward, 7 Cush. 170; but whether or no it be consistent with these decisions, it does not accord well with the doctrine which prevails in England and in most of the states of the Union.
That doctrine is, that an unconditional delivery by the grantor or obligor to a third person, for the use or benefit of the party in whose favour the deed is made, (the grantor or obligor parting with all control over the deed,) will immediately enure to the benefit of the grantee or obligee, and cause the deed to operate in his favour, though there may not appear to be any acceptance or concurrence by the grantee or obligee in the lifetime of the grantor or obligor; the law presuming, if nothing appear to the contrary, that a man will accept what is for his benefit. Shep. Touch. 57; 2 Roll. Abr. (K) 24, pl. 7; Taw v. Bury, Dyer 167b; 1 Anders. 4; Alford v. Lea, 2 Leon. 110; Cro. Eliz. 54; Butler v. Baker, 3 Rep. 26b; Garnons v. Knight, 5 Barn. & Cress. 671; 12 Eng. Com. Law. Rep. 357; Lloyd v. Bennett, 8 C. & P. 124; 34 Eng. Com. Law Rep. 322; Grugeon v. Garrard, 4 Yon. & Coll. 130; Belden v. Carter, 4 Day 66; Church v. Gilman, 15 Wend. 661; Brown v. Brown &c. 1 Woodbury & M. 325.
In the supreme court of the United States an action has been sustained against the surety in an official bond who died while the bond was in course of transmission from Tallahassee to the comptroller of the United States at Washington city, and consequently before its acceptance by the comptroller. The report of this case does not shew distinctly that the enclosure containing the bond was delivered in the lifetime of the surety, by his authority, to the postmaster of Tallahassee (an agent of the United States) to have the bond transmitted and delivered to the proper department of the government ; if this had appeared, we may infer that Mr. Justice Campbell would not have dissented from the judgment. Broome v. U. States, 15 How. 143.
In the case of a bond payable to the state for the benefit of private persons, it is considered in North Carolina there is no presumption of acceptance of the bond by the sovereign unless there be an actual delivery in the case, and to the person authorized by the legislature to take it. State v. Shirley, 1 Iredell 597. But such express acceptance by an agent for the state need not be shewn when the bond is upon its face, exclusively for the use of the state. To such a bond, the rule that from the benefit to the obligee, acceptance is to be presumed applies with as much reason as if the obligee was a private person. State v. Ingram, 5 Iredell 441; State v. McAlpin, 4 Id. 148.
In respect to grants and deeds beneficial to a corporation. their assent to and acceptance of the same, may be inferred from their acts as well as in the case of individuals. Bank of U. S. v. Dandridge, 12 Wheat. 72.
5. By whom delivery may be made ; when not made by, or
in the presence of, the obligor or grantor, it must be by his attorney in fact.
Au instrument under seal may be valid as the deed of two partners when it appears that one of them in the presence of the other and by his authority executed the instrument for them both ; nor is it a valid ohjection that there was but one seal and he did not put the seal twice upon the wax. Ball v. Dunsterville fic. 4 T. R. 313.
If the names opposite the seals be written at the request and in the presence of the parties by a third person, and the instrument thereupon delivered as their deed, the execution is sufficient. King v. Longner. 1 Nev. & Man. 576 ; 4 Baru. & Adol. 647; 24 Eng. Com. Law Rep. 131. For what is thus done by another in the presence of the grantor or obligor and at his request is his act. Gardner v. Gardner, 5 Cush. 483.
But when the deed is executed out of the presence of a party, by a person as his agent or attorney, the rule is, that the authority to execute it must be of as high a nature as the deed. Shaw, C. J. in S. C. The deed not taking effect without delivery, if the delivery be not by the party himself or in his presence, it is to be by some attorney legally constituited by deed for that purpose.
Harrison v. Tiernans, 4 Rand. 177. No such anthority was shewn in Snyder v. May foc. 7 Harris 240; the deed executed in the name of a firm by one partner was held 10 be the obligation of him alone ; not at all the deed of his copartner.
6. Whether an instrument under seal which at the time of
its being parted with by a party is so imperfect that if then delivered it would be of no effect, can by being filled up and delivered under a parol authority, become a valid obligation.
In a case before the supreme court of Massachusetts, in which a party had put his name on a paper in blank and it was filled up and a seal affixed, the court considered that it was