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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

Johns. 432.

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:

but a person cannot, unless authorized by deed, execute an instrument as the act of a person who is absent; and every letter of attorney must be by deed." Shep. Touch. 57. The plain meaning of the passage, says Ruffin, C. J., is that what a person does in the presence of another, in his name and by his direction, is the act of the latter, as if done exclusively in his own person; but that what is done out of his presence, though by his direction and in his name, cannot in law be considered an act in propria persona, but one done by authority; and that wheu the authority is to execute a deed by signing, sealing and delivering it for the party, and especially the delivering it, it cannot be oral but must be by deed. Kime v. Brooks, 9 Iredell 220.

Not only in England, and by C. J. Marshall, and in North Carolina, but in other states is the ancient law adhered to, that a valid deed cannot be made by writing it over a signature and seal made upon a blank or an empty sheet of paper. It is adhered to in Ohio, Ayres v. Harness, 1 Hammond 368; Tennessee, Gilbert v. Anthony, 1 Yerger 69; and Maryland, Byers v. McClenachan, 6 Gill & J. 253, 4. The decisions in Virginia are on the same principle. Asbury v. Calloway, &c. 1 Wash. 72; Harrison v. Tiernans, 4 Raud. 177; Rhea v. Gibson's ex'or, 10 Grat. 215.

The weight of authority leads to the conclusion that at common law it is necessary to the validity of a contract by an instrument under seal, that it should be written and delivered; that unless these two circumstances concur there is no deed binding the party whose seal is affixed to the paper; that when they concur he is bound according to the writing of which delivery is made by him, or in his presence, or by an attorney legally constituted by deed for the purpose; and that he is bound no farther. Co. Lit. 35b; Perkins, § 118; Shep. Touch. 54; Harrison v. Tiernans, 4 Rand. 177; Steiglitz &c. v. Eggenton &c. 1 Holt. N. P. 141; 3 Eng. Com. Law Rep. 54; Van Arminge v. Morton, 4 Whart. 387.

When there are several parties to a deed, it may be considered as one entire transaction, operating as to the different parties to it from the time of the execution by each, but not perfect till the execution by all the conveying parties. If in the progress of such a transaction, there be an alteration by interlineations or filling up of blanks, subsequently to its execution by one party, the deed may still be valid, so as to convey property from a party who executed it afterwards; and the alteration will still leave the deed valid as to the parties previously executing it, provided, such alteration has not af fected the situation in which they stood. Doe v. Bingham, VOL. II.-2

4 Barn. & Ald. 672; 6 Eng. Com. Law Rep. 560; Hall v. Chandless, 4 Bing. 123; 13 Eng. Com. Law Rep. 369.

7. Instrument fully written, and sealed, may be delivered as an escrow to a stranger.

When the instrument has been not only sealed, but fully written before its delivery by the party, the rule in respect to its delivery as an escrow to a stranger, is universally conceded. Cabell, J., in Hicks &c. v. Goode, 12 Leigh 490; Pawling &c. v. U. States, 4 Cranch 219; Murray v. Earl of Stair, 2 Barn. & Cress. 82; 9 Eng. Com. Law Rep. 35. Thus, if the grantor make a writing, and seal it and deliver it to a third person as his writing or escrow, to be by him delivered to the grantee, upon some future event, as his the grantor's deed, and it be delivered to the grantee accordingly, it is not the grantor's deed until the second delivery. And if the grantee obtain the possession of it before the event happen, yet it is not the grantor's deed, and he may avoid it by pleading non est factum. Perkins 137, 138, 142; Wheelwright &c. v. Wheelwright, 2 Mass. 452; Bodwell v. Webster, 13 Pick. 414, 15.

Where it was alleged by one that he agreed to join the principal obligor as his surety in a bond, and executed and delivered the same as an escrow, upon condition that a second person should also join in and execute the bond as co-surety; and that person alleged that he agreed to join as surety in the bond and execute and deliver the same as an escrow, upon condition that a particular individual should join in and execute the bond as co-surety, and that individual never executed the bond; the court of appeals of Virginia held that if these allegations were proved, neither of the parties making them was liable on the bond. King v. Smith &c. 2 Leigh 157.

Generally, a deed delivered as an escrow, to be delivered over as the deed of the party making it, on a future event, takes its effect from the second delivery, and will be considered as the deed of the party from that time. Perk. 143, 144; 3 Co. 35b, 36a; Wheelwright &c. v. Wheelwright, 2 Mass. 453. Yet there are excepted cases in which it takes its effect and is considered the deed of the maker from the first delivery. The exception is founded on necessity, ut res valeat. Thus, according to Perk. 139, 140, if a feme sole seal a writing, and deliver it as an escrow, to be delivered over on condition, and she afterwards marry, and the writing be then delivered over on performance of the condition, it shall be her deed from the first delivery; otherwise her marriage would defeat it. In Brooks' Reading, on the statute of limitations,

p. 150, there is another exception. A. delivers a deed, as an escrow, to J. S., to deliver over on condition performed, before which A. becomes non compos mentis; the condition is then performed, and the deed delivered over; it is good, for it shall be A.'s deed from the first delivery. Another exception is in 3 Co. 35b, 36a. Lessor makes a lease by deed, and delivers it as an escrow, to be delivered over on condition performed, before which lessor dies, and after it is delivered over on condition performed; the lease shall be the deed of the lessor from the first delivery. There is also a strong exception in 5 Co. 85. If a man deliver a bond as an escrow, to be delivered on condition performed, before which the obligor or obligee dies, and the condition is after performed: here there could be no second delivery, yet it is the deed of the obligor from the first delivery, although it was only inchoate : but it shall be deemed consummate by the performance of the condition. Parsons, C. J., in Wheelwright &c. v. Wheelwright, 2 Mass. 454. Therefore, with respect to the deeds in this case, it was held that if they were delivered to a person as escrows, and by him delivered over on the death of the grantor, they must take their effect and be considered as the deeds of the grantor from the first delivery, he being dead at the second delivery; and the cases in 3 Co. 36a, and 5 Co. 85, were deemed in point. The same rule is recognized in Hatch &c. v. Hatch &c. 9 Mass. 310, and Bodwell v. Webster, 13 Pick. 414.

S. Whether there may not be a conditional delivery of a bond to the obligee.

In a case before the supreme court of the United States it was admitted by the counsel that a bond cannot be delivered to the obligee as an escrow; and upon its being contended that where there are several obligees constituting a copartnership it may be delivered as an escrow to one of the firm, this was overruled; the court being of opinion that a delivery to one is a delivery to all. Moss v. Riddle, 5 Cranch 357.

In this case the counsel for the parties who had sealed the instrument admitted the doctrine against them to be more stringent than appears to be established by the weight of authority.

True it is, that in Com. Dig. Tit. Fait A 3, we find this said: "so if it be once delivered as his deed, it is sufficient though he afterwards by words explains his intent otherwise; as if an obligation be made to A and delivered to A himself as an escrow, to be his deed upon performance of a condition,

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