« PreviousContinue »
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. of U. S. v. Dandridge, 12 Wheat. 72. Bank
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.
An 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 objection that there was but one seal and he did not put the seal twice upon the wax. v. Dunsterville &c. 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.
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. out delivery, if the delivery be not by the party himself or in The deed not taking effect withhis presence, it is to be by some attorney legally constituted by deed for that purpose. Harrison v. Tiernans, 4 Rand. 177. No such authority was shewn in Snyder v. May &c. 7 Harris 240; the deed executed in the name of a firm by one partner was held to 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 obliga
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
necessary that the agent who affixed the seal should have authority therefor, and that the signature in blank did not authorize anything beyond a simple contract. Warring v. Williams, 8 Pick. 326.
If a signature in blank does not authorize the agent, when out of the presence of the party, to affix a seal for him, will a blank with a signature and seal be an authority to the agent when out of such presence to fill up the paper and deliver it as a deed?
In a case in which a man wanting to borrow money had executed a writing under seal with blanks for the sum and the obligee's name, and the agent sent to raise money on it had filled those blanks, Lord Mansfield is said to have held on the plea of non est factum, that the bond was valid. Texira v. Evans, cited in 1 Anstr. 229.
This case has been recognized in New York. Woolley v. Constant, 4 Johns. 60; Ex parte Decker, 6 Cow. 60; Ex parte Kerwin, 8 Cow. 118. The supreme court of that state has taken a distinction between an authority to execute a deed, and an authority to make alterations in or additions to, a deed, already signed and sealed by a grantor or obligor. Where security was to be given, to be approved by one Helme, and a bond was delivered by the obligors to an agent with verbal directions to submit it to Mr. Helme, and if he thought any alterations or additions necessary, to make them, and upon Helme's suggestion, the agent added certain words before delivering the instrument, the supreme court of New York was of opinion that the agent had competent authority for that purpose. Knapp v. Maltby, 13 Wend. 589.
In South Carolina, parol authority to fill such blanks is deemed sufficient. A vendor signed and sealed a conveyance of land, and left it with his agent to be filled up whenever the vendee should execute a bond for the purchase money; the authority to the agent was deemed sufficient. Duncan v. Hodges, 4 McCord 239. The defendant signed and sealed a writing, with blanks for the date and name of the obligee, and entrusted it to an agent to obtain on the security of it, a loan of $5000, and to fill the blanks and deliver the bond. The court approving the case of Texira v. Evans, held that what the agent did pursuant to this parol authority, was done by competent authority; and that the boud thus filled up and delivered was a valid bond. Gouslin v. Commander &c. 6 Richardson 497. The opinion in this case assimilates bonds to simple contracts; it takes the ground that what is sufficient to give authority to fill blanks in a note, must also be sufficient to authorize the filling blanks in a bond, where in each case
the instrument is used in procuring a loan, and is to be delivered to the lender as a security for the sum advanced; that when the question is about the sufficiency of verbal directions to deliver, the same evidence must suffice, whether the subject of delivery be a bond, or a note, or a chattel.
This is different from the view in England since Lord Mansfield's time, as well as before. "A man," says Lord Ellenborough, may render himself liable as a party to a bill of exchange or promissory note, by signing his name on a blank stamp; but there are certain solemnities indispensable to the validity of deeds." Powell v. Duff, 3 Camp. 182. This was an action ou a bail bond; and it appearing that the defendant executed the bond when only the penal part had been filled up, and that the condition was filled up after he had left the office, the plaintiff was nonsuited on the plea of non est fac
There are other authorities that an instrument with a blank in it which prevents it from having any operation when it is sealed and delivered, cannot become a valid deed by being afterwards filled up. Com. Dig., Fait A. 1, A. 3, and Obliga. B. C.; Bull. N. P. 267; Weeks v. Maillerdet, 14 East 568. The case of Texira v. Evans is questioned by Mr. Preston in his edition of Shep. Touch. 68, "as it assumes there could be an attorney without deed;" and the court of exchequer thinks it is justly so questioned; and that the case cannot be considered to be law. Hibblewhite v. McMowrie, 6 M. & W. 215; 13 Id. 345.
We are told by Parke, B., there is no case that shews that an instrument which when executed is incapable of having any operation, and is no deed, can afterwards become a deed by being completed and delivered by a stranger in the absence of the party who executed it, and unauthorized by instrument under seal. S. C., 6 M. & W. 216.
Such is now the English doctrine. It formerly prevailed in South Carolina. Boyd v. Boyd, 2 Nott & McCord 125. There a paper which, instead of being an attachment bond, such as the statute required, was all blank except the signatures, was held not to be a valid bond; the court distinctly recognizing the law as laid down in Com. Dig., Obliga. B. 3, referring to Perkins, § 188, that "if a blank be signed and sealed, and afterwards written, it is no deed."-" So, indeed," said the court, "are all the cases." In its opinion the bond must be perfected before the attachment can issue;" "the magistrate is the agent of the defendant to accept the delivery of the bond." Perminter v. McDaniel &c. 1 Hill 267.
So in New York, before the decisions in that state, referred to on p. 13, it was said by Kent, C. J., the affixing of the hand and seal to a piece of blank paper never can be considered an assignment by deed or note in writing within the requisition of the statute of frauds; and to allow the subsequent filling up of the deed by a third person to have relation back to the time of the sealing and delivery of the blank paper, in consequence of some parol agreement of the parties, is to open a door to fraud and perjury, and to defeat the wise and salutary provisions of the statute. Jackson v. Titus, 2
The decision in Texira v. Evans was viewed with some favour in Pennsylvania in Wiley &c. v. Moore &c. 17 S. & R. 438; but since that time-in Wallace v. Harmstad, 3 Harris 467, 8-the supreme court of that state has acknowledged the powerful doubt of the validity of that decision, expressed by Mr. Preston, the learned editor of Sheppard's Touchstone, at page 179.
Where the whole of the instrument is written, with the exception that a blank is left for the name of the surety, and after the bond is executed by the surety the blank is filled with his name, this will not avoid the bond as to him. Smith v. Crooker &c. 5 Mass. 538. This alteration or addition is deemed immaterial. 2 Brock. 71. There may be other cases where, in a bond a blank being left for the insertion of part of a name, perhaps the whole name, of a particular person, the filling such blank will not avoid the bond as to him. Gaselee, J. in Hudson v. Revett, 5 Bingh. 368; 15 Eng. Com. Law Rep. 473; Parke, B. in Eagleton v. Gutteridge, 11 M. & W. 468; and a blank left for the time of payment may perhaps be filled up on the same principle. Ogle v. Graham, 2 Pen. & Watts 132.
There is not much difficulty in any such case, when the blank is such that, though it were not filled up at all, the instrument is complete so far as to admit of an action thereon for a breach of it. But there is more difficulty when there is in blank so material a part that the parties executing the instrument are, at the time of its execution, no more bound by it than if it were all blank; as if there be no obligee or sum of money mentioned in it. Then the question is, whether they can, by parol, authorize a person to fill up and deliver the bond, so as to create an obligation which did not exist when it was delivered by them. Stahl v. Berger &c. 10 S. & R. 170; Hale v. Russ, 1 Greenleaf 337.
Judge Parsons having laid down that "the party executing the bond, knowing that there are blanks in it to be filled up
by inserting particular nanes or things, must be considered as agreeing that the blanks may be thus filled after he has executed the bond." (5 Mass. 539), it was said by C. J. Marshall of this position-which makes no distinction between an express and an implied assent-that he was "not sure that it is sustained by law. He who adds to the obligation of another must." says the Chief Justice, "do so by the authority of that other; and I know of no case in which, as respects a deed, such authority is implied in a court of law, certainly of none when not even the person is designated by whom the authority is to be executed." 2 Brock. 71, 2.
There was, however, a material difference between the case before Judge Parsons and that before C. J. Marshall; in the former the blank was to be filled up only in one manner; in the latter a blank was to be filled up with a sum of money, which sum had not been precisely fixed when the obligors executed the instrument. The defendants in the latter case having executed a printed paper, (containing the formal parts of the bond) with the knowledge that it was to be received as an official bond, and with an intention to bind themselves as the officers' sureties, the question was whether their sealing and delivering the paper authorized any person to insert the penalty and other written parts in the bond, and make the writing their deed in the form in which it was sued upon? On this question, the decision of C. J. Marshall was in favour of the defendants; and no appeal was taken from that decision. U. S. v. Nelson &c. 2 Brock. 64.
The supreme court of North Carolina has repeatedly overruled Texira v. Evans; it acts on what is learned from Co. Lit. 52a and the Touchstone 57, that he who executes a deed as agent for another, whether it be for money or for other property must have an authority under seal. McKee v. Hicks, 2 Dev. 379. An instrument signed and sealed by the defendant in blank, and delivered to an agent with directions to purchase a vessel for the defendant, and fill up the instrument with the price to be agreed on, and deliver it, was held not a good bond, though the defendant declared his approbation afterwards of what had been done. Davenport v. Sleight, 2 Dev. & Bat. 381; 9 Iredell 229. The court considers the insertion of the sum in the blank space, though intended to consummate the deed, as done without legal authority, and therefore that the instrument is void as a bond. Graham v. Holt, 3 Iredell 300. In a recent case it has distinctly recognized the rule as laid down in the Touchstone, that "where one person delivers an instrument as the act of another person who is present, no deed conferring an authority is requisite: