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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.
li 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 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 decd, and an authority to make allerations 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 arent with verbal directions to submit it to Mr. Helme, and if he thought any alteratious 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 anthority for that purpose. Knapp v. Maltby, 13 Wend. 589.
In South Carolina, parol anthority 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 anthority, was done by competent authority; and that the bond thus filled up and delivered was a valid bond. Gouslin v. Commander 8c. 6 Richardson 497. The opinion in this case assimilates bonds to simple contracts; it takes the ground that what is sufficient to give anthority 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. Dujf, 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 factum.
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. laillerdet, 14 East 565. The case of Terira 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 blauk except the signatures, was held uot to be a valid boud; 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 foc. 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 Johns. 432.
The decision in Texira v. Evans was viewed with some favour in Pennsylvania in Wiley &'c. v. Moore 8.c. 17 S. & R. 433; but since that time--in Wallace v. Haristud, 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
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 f'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. 469; 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 blavk; 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 góc. 10 S.
v & R. 170; Hale v. Russ, 1 Greenleaf 337.
Judge Parsons having laid down that "the party executing ihe bond, knowing that there are blanks in it to be filled up by inserting particular natnes or things, must be considered as agreeing that the blauks 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 blauk 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 foc. 2 Brock. 64. The supreme court of North Carolina has repeatedly overruled Terira 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 niust have an authority under seal. McKee v. Hicks,
. 2 Dev. 379. An iustrument 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 approbatiou afterwards of what haid been done. Davenport v. Sleight, 2 Dev. & Bat. 381; 9 lredell 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 recog. nized 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 anthority; and that when 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. Cal loucay, fc. 1 Wash. 72; Harrison v. Tiernans, 4 Rand. 177; Rhea v. Gibson's er'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 fc. v. Eggenton Soc. 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 hy 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 affected the situation in which they stood. Doe v. Bingham,