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4. In New York, Vermont and Massachusetts there must be an impression on wax, wafer, or some tenacious substance.
In New York, Judge Livingston was disposed to hold as a general rule that an instrument purporting to be a bond, and in its usual form and terms, delivered also as the maker's deed, might be a specialty, notwithstanding there was affixed to his name L. S., instead of a seal with wax or wafer. 2 Caines' Rep. 362. But a majority of the judges declined allowing a scrawl to be substituted for a seal. There ought, Judge Kent thought, to be evidence of some positive and serious public inconvenience, "before we at one stroke annihilate so well established and venerable a practice as the usage of seals, in the authentication of deeds.” Warren v. Lynch, 5 Johns. 245. "This venerable custom of scaling," said Platt, J., "is a relic of ancient wisdom, and is not without its use at this day." "A seal attracts attention, and excites caution in illiterate persons, and thereby operates as a security against fraud." 12 Johns. 76.
In Vermont, Warren v. Lynch and 4 Kent's Com. 444 have been deemed conclusive. Beardsley v. Knight, 4 Vermont 179.
When in Massachusetts cases were cited from Virginia and Pennsylvania, shewing that in each of these states a scroll was a seal before it was made so by statute, Wilde, J. said, then that is the common law there in opposition to the common law of England. Com. v. Griffith, 2 Pick. 13. The courts of Massachusetts do not, however, require that the impression should be on wax; they hold that a seal by a wafer or other tenacious substance, upon which an impression is or may be made, is a valid seal. Bradford v. Randall, 5 Pick. 496; Tucker &c. v. Bartlett &c. 5 Cush. 364.
5. In Pennsylvania though a scroll is allowed, an incision in the paper, with a riband through it, is not sufficient; there must be a seal, or a scroll by way of seal.
Although in Pennsylvania a scroll made with ink has by immemorial use and custom been adopted as a seal, yet even in that state parties are not permitted to substitute any mark or device which their imagination may suggest for a seal. In Duncan v. Duncan, 1 Watts 325, the body of the conveyance, and the certificates, appeared all to have been drawn in the same handwriting. The conveyance was written on parchment, in the margin of which, at the end of each name of a
grantor subscribed to the deed, and of each name of an officer subscribed to a certificate, there was an incision or slit made in a horizontal direction, apparently with a knife, and a blue riband weaved through the same by the scrivener, who, no doubt, intended that the riband, which covered about five eighths of an inch square of the parchment, at the end of each name, should, at the time of signing, have been covered with a seal of wax, and by means thereof have been attached to or incorporated with the parchment. But this was neglected. In the conclusion of the conveyance were the words "we have set our hands and affixed our seals ;" and in each certificate the words "under my hand and seal." But no scroll, wax, wafer, or any thing more than the riband was used to denote a seal. It was contended that the riband inserted in the parchment, in the manner described, was sufficient in law to constitute a seal, if so intended by the party, and that it ought to have been submitted to the jury to decide whether the riband was used with that intent or not. But the supreme court of Pennsylvania considered that whether an instrument of writing be under seal or not, is a question of law to be solved by the court from the inspection of the instrument itself. And it decided that this instrument was not under seal.
This case shews, as indeed has been often adjudged, that although in the body of a writing it is said that the parties have set their hands and seals, yet it is not a specialty unless it be actually sealed and delivered. Taylor &c. v. Glaser, 2 S. & R. 502.
6. How several may use the same seal.
One piece of wax may serve as a seal for several persons, if each of them impresses it himself, or one impresses it for all, by proper authority, in the presence of all. Lord Lovelace's case, W. Jones 268; Ball v. Dunsterville, 4 T. R. 313; Ludlow v. Simond, 2 Caines's Cas. 42; Mackey &c. v. Bloodgood, 9 Johns. 285; Tasker &c. v. Bartlett &c. 5 Cush. 364.
But then it must appear by the deed, and profess to be, the seal of each. Cooch v. Goodman, 2 Adol. & El., N. S. 598; 42 Eng. Com. Law Rep. 825; and each should sign it, or his adoption of the seal be in some way clearly proved. Maule v. Weaver, 7 Barr 332.
7. What recognition of the seal or scroll is required in the body of the instrument.
Whether the instrument was sealed or not, President Tucker
thought did not, at common law, depend at all upon the recognition of the seal in the body of the instrument. Cromwell v. Tate's ex'or, 7 Leigh 305. And in Maryland, a scrawl being considered equivalent to wax or wafer, if there a party execute and deliver an instrument with a scrawl attached to it, it is considered as much his seal as if he had declared it to be so in the body of the instrument. Trasher v. Everhart, 3 Gill & J. 246. This is a looser course than seems to be recognized in England. There the putting a seal opposite to the name, though evidence of a deed, and one of the formalities belonging to it, is not taken as conclusive. If, said Chambre, J., the parties did not mean to contract by deed, their ignorance as to the effect of a seal could not make it so. In a case before him, in which the words of the articles were, "to which the parties have set their hands," not seals, he said, it was therefore not the intention of any of the parties to execute a deed. Clement v. Gunhouse, 5 Esp. 83.
In South Carolina, the mere circumstance of a scrawl appearing upon a paper, without any declaration of a party that a seal had been affixed, nor any other evidence of the fact, is not sufficient to constitute a deed. Relph &c. v. Gist, 4 McCord 271. There must be some evidence, intrinsic or extrinsic, which creates a belief that some mark on the paper was intended as a seal. Gramling v. Woodward, 2 Richardson 622, 3. The jury is to be satisfied that the party when he signed did intend to adopt, and did actually adopt, as a seal, something then existing on the paper. O'Cain v. O'Cain,
1 Strob. 402.
And in Virginia, the general rule is, that an instrument with a scroll affixed to it, is not a sealed instrument, unless in some part of it the scroll be recognized as affixed by way of seal. Baird &c. v. Blagrove &c. 1 Wash. 170; Argenbright v. Campbell & wife, 3 H. & M. 174; Austin's adm'x v. Whitlock's ex'ors, 1 Munf. 487; Anderson &c. v. Bullock &c. 4 Munf. 442; Jenkins v. Hurt's commissioners, 2 Rand. 446; Peasley v. Boatwright, 2 Leigh 195; Cromwell v. Tate's ex'or, 7 Leigh 301. The scroll is considered as sufficiently recognized when the intention to make the paper a sealed instrument can be ascertained from the body of the instru
Such intention sufficiently appears, when on the face of the instrument it is expressed to be "sealed with my seal" or "our seals," or given under or witnessed by "my hand and seal" or our hands and seals," or has other words of like import, besides having a scroll or seals, with appropriate names.
It is not generally manifest when the paper merely concludes 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 &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 upon 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 and acknowledged in their presence. Parks v. Hewlett &c. 9 Leigh 511; Ashwell v. Ayres &c. 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 ed.; 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 Sc. 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. Glasgow 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 OBLIGATION.
1. How far date of instrument is evidence of time of its delivery.
Barmon v. Jay, 2
A deed is made when it is delivered. 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 suffiCo. Lit. 36a; 1 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.
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