Magee v. Fisher , 8 Ala. 320 ( 1845 )

ORMOND, J.

The objection in this case, is purely technical; nevertheless if well founded, we have no authority to disregard it. It having been found in practice, frequently difficult to determine, whether an instrument was to be considered as sealed, or not, the Legislature passed the following declaratory act: “ All covenants, conveyances, and all contracts, which import on their face to be under seal, shall be taken and held to be sealed instruments, and shall have the same effect as if the seal of the party or parties were affixed thereto, whether there be a scroll to the name of such parties, or not.” [Clay’s Dig. 158, §41.] The evident meaning of this is, that where the parties declare their intention that the instrument shall be sealed, it shall so operate, whether it be in fact sealed, or not. Upon an inspection of the instrument in this case, it appears, that although in the body of the paper they have used terms of doubtful import, they have not expressed their intention, to make it a sealed instrument, and therefore it cannot operate as such. The terms “ indenture” and “ covenant,” though usually found in deeds, have not a technical ' meaning. An instrument may be indented, whether under seal or not, and the practice has in fact become obsolete. A covenant is a contract, and is a writing obligatory, or parol promise, according as it is sealed, or not. The same remarks apply to the terms “ demise,” and “to farm let.” They are generally found in leases, but may be expressed by other terms, and are therefore not technical. Nor does it add any thing to the obligation of a contract of lease, that it is under seal. The use of these terms, therefore, in the declaration, does not necessarily imply, that the instrument in which they were alledged to be, was sealed ; that is only effected by the use of the terms “ deed,” or “ writing obligatory ;” and even when these technical terms are used, it is customary to add, in conformity with the precedents, “ sealed with his seal.” No such allegation being found in this declaration, the legal effect ascribed to the instrument, by the pleader, is, that it was a parol contract, and such in fact it was.

Making profert in curia of the instrument, was merely sur-plusage, which does not vitiate.

The legal effect of the instrument is not changed by the fact, that it commences in the singular number, and is signed by other parties, whose names are not found in the body of the instrument. In contemplation of law, the lease is to all, who by their contract have become bound for the payment of the rent, there being no-rthing in the body of the instrument to negative that conclusion. Let the judgment be reversed and the cause remanded.