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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. Heneage, 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 authorities it seems, 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 use, 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 &c. 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 &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 & wife v. Mansfield, 3 Metcalf 414, 15; O'Kelly &c. 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. Tonch. 57; 2 Roll. Abr. (K) 24, pl. 7; Taw v. Bury, Dyer 1676; 1 Anders. 4; Alford v. Lea, 2 Leon. 110; Cro. Eliz. 54; Butler v. Baker, 3 Rep. 266; 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


[TIT. 1,

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.

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