Carter v. Doe ex dem. Chaudron , 21 Ala. 72 ( 1852 )

CHILTON, J.

— This was an action ef ejectment brought by Chaudron against Carter, to recover certain real estate, consisting of lots in tbe city of Mobile.

Tbe principal questions discussed, and to which we shall mainly direct our inquiries, relate to tbe sufficiency of tbe execution, and also to tbe construction, of a certain deed of conveyance under which tbe plaintiff below claimed; which deed was executed by one Garrow, as attorney in fact of Joshua Kennedy, and is in these words:

“ This indenture, made and entered into between Joshua Kennedy and S. H. Garrow, both of Mobile city in tbe Alabama Territory,'of the first (part,) and Daniel Duval, of tbe county and Territory aforesaid, of tbe other part, witnessetb: Whereas, tbe said Joshua Kennedy, by bis certain letter of attorney under bis band and seal, duly executed, dated tbe 23d day of March, 1818, amongst other things therein contained, did authorize tbe said S. H. Garrow, in tbe name of Mm, tbe said Joshua Kennedy, and in bis behalf, to execute deeds, make sales of such parts of bis lots and lands, tenements and hereditaments, in tbe town of Mobile, county and Territory aforesaid, as by tbe said S. H. Garrow shall be thought fit to be sold. Now this indenture witnessetb, that for and in consideration of tbe sum (and) covenants bereinaf-ter mentioned, reserved and contained, on tbe part of tbe said Daniel Duval, to be paid, done and performed, be, tbe said Joshua Kennedy, by bis attorney, S. H. Grarrow, batb granted and sold, and by these presents (doth) grant, sell and convey unto tbe said Daniel Duval,” tbe lots, &c., (here follows a description of six lots, as tbe property conveyed,) “for tbe sum of fifty dollars each, making altogether tbe just sum of three hundred dollars, to be paid by tbe said Daniel Duval, bis heirs, executors and administrators, to tbe said Joshua Kennedy, bis heirs or assigns, as soon as tbe Government of the United States shall have confirmed to tbe said Joshua Kennedy, or bis heirs, the title to tbe said bargained lots of land: To have and to bold tbe above specified lots, together with all tbe privileges and appurtenances thereunto belonging, unto tbe said Daniel Duval, bis heirs and assigns forever: Provided, nevertheless, and it is tbe true intent and meaning of these presents, and of tbe parties thereunto, that tbe said Daniel Duval, bis heirs, executors and administrators, shall pay or cause to be paid to tbe said Joshua Kennedy, bis heirs or assigns, tbe yearly interest of eight per cent, on tbe said sum of three hundred dollars, until tbe covenants before mentioned are complied with; tbe interest to commence from tbe first day of this present month, January.

“In witness whereof tbe parties have hereunto set their bands and seals. Mobile, January 18th, 1819.”

(Signed thus) “S. H. GrARROtv, [Seal]

Attorney in fact for J. Kennedy.”

Tbe questions arising upon this deed are: First. Is it well executed as tbe deed of Kennedy, tbe principal ? ’ Secondly. Is the deed conditional, leaving tbe title to be defeated upon tbe non-performance of tbe condition ?

As to tbe first question: In Coombe’s case, 9 Co. 75, authority was given by a copy-holder to two persons as bis attorneys to surrender ten acres of pasture to tbe use of J. N. They made tbe surrender, and tbe entry on tbe court roll was, “ that tbe said attorneys in tbe same court showed tbe writing aforesaid, bearing date, &c., and they, by virtue of authority to them by tbe said letter of attorney given, in full court surrendered unto tbe said lord tbe said ten acres of pasture to the use of said J. N.;” and tbe question was, whether tbe said surrender was good or not. The court held, that it was good, and resolved, “that when any one has authority as attorney to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place and to represent his person; and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.” And when it was objected in that case, that the attorneys had made the surrender in their own name, for the entry was, that “ they surrendered,” it was answered and resolved by the court, “ that they had well performed their authority; for, first, they showed their letter of attorney, and then they, by the authority to them, by the letter of attorney given, surrendered, &c., which is equivalent to saying, we, as attorneys, &c., surrender, &c.; and both these ways are sufficient. * * * But if attorneys have power by writing to make leases by indenture for years, &c., they cannot make indentures in their own names, but in the name of him who gives the warrant.”

"We are also cited, by the counsel for the plaintiff in error, to the case of the lessee of Clarke et al. v. Cantrey et al. 5 Peters, 319, in which it was held, that a power of attorney given by J. B. Clarke and Eleanor, his wife, to Carey L. Clarke, for the sale of lands, was not properly executed in the following form:, “I, the said Carey L. Clarke, attorney as aforesaid, &c., do” — “ In witness whereof, the said Carey L. Clarke, attorney as aforesaid, has hereunto subscribed his hand and seal, this 24th day of November, A. D., 1800. Carey L. Clarke, [L. S.]” It was said by the court, that the act of Clarke did not purport to be the act of the principals, but of the attorney; and hence, it fell directly within the influence of the rule laid down in Coombe’s case.

Mr. J. Story, after citing Coombe’s case as correctly stating the ancient rule of the common law, proceeds to state that “ this rule, thus laid down, is regularly true in regard to solemn instruments under seal, although not, as we shall presently see, as to instruments not under seal. Therefore, if a person is authorized by a power of attorney to make a conveyance under seal of the lands of his principal, and he makes the conveyance by a deed in his own name, it will be a void conveyance. And it will make no difference in the case, tbat in the deed the agent describes himself as such; as if he says “ know all men by these presents, that I, A. B., as agent of C. D., do hereby grant, sell, convey, &c.; or if he signs and seals it, A. B., for C. D.; for in such a case it is still his own deed, and not the deed of his principal.” Story on Agency, (2 Ed.) § 148.

The same doctrine is laid down by Mr. Paley in his work on Agency, (2d Am. Ed.) pp. 152-8. But this author further states the law to be, “ that if the execution of the deed really appear to be in the name of the principal, the form of words used in the execution is not material; for in a late case, where the principle (that the deed must be in the name of the constituent) was recognized and affirmed, it was deemed sufficient, that opposite the seal was written “for S. B., (the principal,) M. W.” (the attorney.) Wilkes v. Back, 2 East, 144. Mr. Paley further says: “Although in these cases of mere ceremonial acts it is indifferent in what order the names stand, whether the principal by the attorney, or the attorney for the principal, yet in the form of a contract made by the attorney the wording is material; as in an indenture of lease, it must in terms be conveyed by the principal, in whom alone the interest is; for the power of attorney, as such, vests no interest in him, and consequently none can pass from him. Therefore, if a lease were made in the name of an attorney, though it were added also, by virtue of a letter of attorney, or, by A. B., as attorney for C. D., it would be a void lease.”

This doctrine has undergone elaborate investigation in most of the American courts, and the principle has been, with few exceptions, fully recognized, that the deed must be executed in the name of the principal, and where it is in the name of the agent, as agent for the principal, the superadded words as to the agency are to be regarded as descriptive of the person. Story on Agency, § 151.

In Townsend et al. v. Hubbard and Orcutt, 4 Hill, 451, it was held, by nineteen out of twenty senators, “that a sealed instrument, when executed by one acting as an attorney, must be executed in the name of the principal, and purport to be sealed with his seal.” In that case, the deed, in the commencement, set out the names of the principals as the party of the first part, by their agent, H. B.; and “ the parties of the first part covenanted to convey,” &c., and it concluded, “In witness whereof, the said H. B., as attorney of the parties of the first part, and the said parties of the second part, have hereunto set their hands and seals.” (Signed) “H. B.” [L.S.]

'Walworth, Chancellor, said: “In an agreement not under seal, executed by an agent or attorney, in behalf of his principal, and where the agent or attorney is duly authorized to make the agreement, it is sufficient, as a general rule, if it appears in any part of the instrument that the understanding was, that the principal, and not the agent or attorney, was the person to be bound for the fulfilment of the contract. And even in the case of a sealed instrument, executed by an agent duly authorized by power of attorney under seal, no particular form of words is necessary to render it valid and binding on the principal; provided, it appears upon the face of the instrument that it was intended to be executed as the deed of the principal, and that the seal affixed to the instrument is his seal, and not the seal of the agent or attorney merely:” citing Wilkes v. Back, supra. There being several parties to the instrument in that case, and but one seal, he conceded that it was not necessary to affix a seal for each party, if it .appeared that the seal was intended to be adopted as the seal of all; but he maintained, that where it appeared that the seal used was the seal of the attorney, and not that of the principal, the latter was not bound.

Bronson, J., in delivering the opinion in Townsend v. Corning, in the Supreme Court, (23 Wend. 442,) said: “ It is not enough that the body of the instrument is drawn in proper form. It is required to be signed and sealed, before it could become the deed of any one; and the signature and seal of one man could not make it the deed of another.” See, also, upon this subject, 2 Kent’s Com. 131; Frontin v. Small, 2 Lord Raymond, 1418; Harper v. Hampton, 1 Har. & John. 622-687; Scott v. McAlpin, 155; 1 Bouv.’s Bacon, 526; 2 Cush. 337; 13 Metcalf, 498; 5 Bouv.’s Bacon, 571.

Some of the courts seem to have overlooked the distinction taken in Coombe’s case, between an act to be done in pais, and the execution of a naked authority by deed. This distinction is drawn with great clearness by the author last above cited, wbo says: “This case, therefore, (of making leases by letter of attorney,) seems to differ from that of a surrender of a copyhold, or of livery of seizin of a freehold, by letter of attorney; for in those cases, when they say, “We, A and B, attorney for C,” or, “by virtue of a letter of attorney from C.” of such a date, &c., “do surrender,” &c., or, “deliver to you seizin” of such lands; these are good in this manner, because they are only ministerial ceremonies, or transitory acts in pais, the one to be done by holding the court rod, and the other by delivering a turf or twig; and where they do them as attorney, or by virtue of a letter of attorney from their master, the law pronounces thereupon as if they were actually done by the master himself, and carries the possession accordingly; but, in a lease for years, it is quite different, for the indenture or deed alone carries the interest, and is the very essence of the lease, both as to passing it out of the lessor at first, and its subsistence in the lessee afterwards. The very indenture or deed itself is the conveyance, without any subsequent construction or operation of the law thereupon ; and, therefore, it must be made in the name and style of him who has such interest to convey, and not in the name of the attorney, who has nothing therein.” He says, in the conclusion, that “the attorney must put the hand and seal of the master, and so write the master’s name, and deliver it as the act and deed of the master,” which delivery agrees with, making a surrender by holding the court rod, or making livery of seizin by turf or twig, and proves that there is a great diversity between an attorney making a lease in his name, as attorney, and a surrender of copyhold or livery of seizin of a freehold estate. 5 Bacon’s Abr. by Bouv. 571-2; see, also, 2 Str. 705; Cro. Eliz. 115; Rolls Abr. 330; Hopkins v. Mehaffy, 11 Serg. & E. 126; Bogart v. DeBussy, 6 Johns. 94.

The cases of Montgomery v. Dorion, 7 New Hamp. 475; Magill v. Hinsdale, 6 Conn. 464, and, perhaps, the reasoning of Blackford, J., in the case of Deming v. Bullitt, 1 Blf. 241, are opposed to the view which is taken by the counsel for the plaintiff in error. See, also, a dissenting opinion of Dickinson, Senator, in Townsend v. Hubbard, 4 Hill, 361, where the opposite doctrine is attempted to be upheld, and the two last cases cited and relied upon. This doctrine received a further support by the Court of Appeals of South Carolina, in the case of Varnum, Fuller & Co. v. Evans, 2 McMullen, 409, where it was held, that an instrument under seal, accepting the provisions of an assignment, and releasing certain debts, and in the body of which it was recited by the attorney: “I do hereby, by virtue of the authority vested in me, as aforesaid, in the name and in behalf of the said V. F. & Co., (the principals,) accept, &c., and do further release, &c.” Signed, “J. W. [seal] agent for V. F. & Co.,” was the deed of V. F. & Co. Oneal, J., in delivering the opinion, after stating the rule in Coombe’s case, “ that if attorneys have power, by writing, to make leases by indenture, for years, &c., they cannot make indentures in their own names, but in the name of him who gives them warrant,” proceeds to say: “ This is, I concede, the law governing all deeds made by attorneys, and to it their deeds must conform; but this is done whenever, as in this case, the deed declares it to be made in pursuance of the authority, and in the name and on behalf of the principal.”

Three cases from our own reports have been cited, viz: Stringfellow & Hobson v. Marriott, 1 Ala. 573; Lazarus v. Shearer, 2 ib. 718; and Robinson v. Mauldin, 11 ib. 984. The case in 1 Ala., arose upon a warranty not under seal; that in 2 Ala., on a bill of exchange, drawn by the chief engineer of a railroad company, signing his name as such; and the case in 11 Ala, was, whether the acknowledgment of an attorney in fact, certified by the clerk as appearing before him in that capacity, that he (the agent,) signed, sealed, and delivered a certain specified deed, was sufficient, and it was held a sufficient acknowledgment.

The last decision falls directly within the influence of Coombe’s case, and, like the surrender, may well be made in the way in which the party made it. To the other two cases, involving the construction of unsolemn instruments, a different rule of construction applies, which is, that the court will look to the whole instrument to gather the true object and intent of the parties; and if it appear that the principal, and not the agent, was intended to be bound, the court will disregard the irregularity or informality in its execution. This rule, it is said, is founded on public policy, for' the further-anee of commerce and convenience of trade. Story on Agency, §§ 154, 269, 270, 275,276, 395 to 400, and cases cited by this author.

It is very clear, we think, that to constitute it the deed of the principal, he, and not the agent, must appear, from the body of the deed, to be the grantor; and the deed must be signed with his name, and purport to be sealed with his seal In this case, Kennedy, the principal, grants and conveys; he is made a party of the first part with Garrow, the agent, and the attestation clause is: “In witness whereof, the parties have hereto set their hands and seals.” This must mean the persons who compose the party of the first part; for, although the deed is in the form of an indenture, it is, in fact, a deed poll, and purports only to bind one party. It was very inar-tificially drawn, and as it was the manifest intention to bind the grantor as the party of the first part, we must consider the seal annexed, which purports to be the seal of “ the parties,” as his, although it may have been intended as the seal of the agent also. It is well settled, that one seal may be adopted by any number of persons, and answer for all of them. Ball v. Dunsterville, 4 Term R. 313 ; Mill Dam Foundry v. Hovey, 21 Pick. 417; Hatch v. Crawford, Adm’r. 2 Porter, 54.

Indeed, it is manifest, that since impressions upon wax, or other impressible substance, have been superseded by circumflex lines answering to seals, it would, in many cases, be impossible to identify the seal of the grantor as at common law: and the strictness of the common law rules has been relaxed in their application to such cases. And where, as in this case, the seal affixed might be regarded either as the seal of the agent or of the principal, since the seal of itself is incapable of identification as the seal of either, we must look to the body of the instrument, and construe it to be the seal of the party intended to be bound by the deed as the grantor, “ut res magis valeai quam pereat." Reynolds’ Heirs v. The Trustees of Glasgow Academy, 6 Dana, 37.

2. As to the question whether this is a conditional deed, and conveyed to the grantee but a conditional fee: The court is unanimous in the opinion, that the fee is conditional, dependent upon the yearly payment of interest as therein provided. It purports to be made in consideration of the sum and covenants threinaffcer mentioned, reserved and contained, on the part and behalf of the said Duval, to be paid, done and performed, &c.; and conveys certain lots to Duval, for the sum of three hundred dollars, to be paid by the said Duval, his heirs, &c., to Joshua Kennedy, as soon as the Government of the United States shall have confirmed to the said Kennedy, or his heirs, the title to the said bargained lots of land: “ To have and to hold, &c., to the said Daniel Duval, his heirs, &c., forever: Provided, nevertheless, and it is the true intent and meaning of these presents, and of the parties thereunto, that the said Duval, his heirs, &c., shall pay, or cause to be paid, to the said Joshua Kennedy, his heirs, &c., the yearly interest of eight per cent, on the said sum of three hundred dollars, until the covenants above mentioned are complied with; the interest to commence from the first day of this present month, January.”

The words which will constitute a condition, are stated by Mr. Grabb, in his work on real property, page 800 § 2140, tobe “ sub conditioned “ita quod,” “ si contingat,” “proviso,” “there being,” &c. He says the word “proviso” may operate as a condition, although there be covenants before, if the words forming an entire sentence begin with “proviso,” and be spoken by the feoifor, vendor or lessor, and the act to be performed or not performed be by the feoffee, vendee or lessee. Dyer, 311.

Lord Coke lays down the rules which must govern in determining when the word “proviso” shall constitute an estate or interest conditional, as follows: “ When this word shall make an estate or interest conditional, these three things are to be observed: 1. That the proviso do not depend upon another sentence, nor participate thereof, but stand originally to itself; 2. That the proviso be the words of the bargainor, feoifor, &c.; 3. That it be compulsory to enforce the bargainee, &c., to do an act. Cromwell’s Case, 2 Co. 70 ; Crabb, §2141. See, also, Browning v. Beston, Plow. 131, which was several times elaborately argued, and the old cases all collated.

But it is unnecessary to review the cases bearing on the question as to what shall and what shall not constitute an estate conditional. The books seem generally agreed to assign to tbe words here used the force and effect of a condition.

In the first volume of the Touchstone, 121, it is said: “Conditions annexed to estates are sometimes so placed and confounded amongst covenants, sometimes so ambiguously drawn, and at all times have in their drawing so much affinity with limitations, that it is hard to discern and distinguish them. Know, therefore, (says the author,) that, for the most part, conditions have conditional words in their frontispiece, and do begin therewith; and that amongst these words there are three that are most proper, which, in and of their own efficacy, without any addition of other words of re-entry in the conclusion of the condition, do make the estate conditional, as proviso, ita quocl, and sub conditions; and therefore, if A grant lands to B, to have and to hold to him and his heirs, provided that, or so as, or under this condition, that B do pay to A ten pounds at Easter next, this is a good condition, and the estate is conditional,without any more words.” See further, on this point, 5 Vin. Abr. 47; Plow. 131; Rolls’ Abr. Conditions, K; 5 Mass. 320; 3 Comyn’s Dig. 86; 5 Serg. & Bawles, 385; 2 Bouv. Inst. 272-3; Bacon’s Abr. Conditions. H.

3. But it insisted, that the instruction of the Circuit Court to the jury, that this was not a conditional deed, worked no injury to the plaintiff in error, because the bill of exceptions fails to show an entry for condition broken, or even that the condition was broken. This position cannot be sustained; for the rule is settled by numerous decisions of this court, that whore an affirmative charge is given by the court, either of its own motion, or at the instance of the opposite partjr, and is excepted to, it is unnecessary to set out the evidence on which it is founded. Peden v. Moore, 1 Stew. & P. 71; Rowland v. Ladiga, 9 Por. 488; Kirksey v. Jones, 7 Ala. 623 ; Dukes v. Leowie, 3 ib. 459 ; Tharp v. The State, 15 ib. 479; Ware v. Dudley, 16 ib. 742.

The court is clearly put in error in respect of a most important point made in the cause — the construction of the deed; and if the plaintiff below desired to parry the effect of this erroneous construction, he should have caused the whole of the proof to be set forth in the bill of exceptions, thus certifying to us that the charge was abstract, and had no necessary tendency to mislead, or that, by reason of something else, the charge was rendered innocuous- We cannot presume, from the silence of a bill of exceptions which does not purport to set out all the proof, that the erroneous affirmative charge was either abstract, or not injurious. 6 Ala. 226.

4. Although the deed from Kennedy to Duval contains no covenants of warranty as to title, yet it purports to convey the whole title, and recites the fact, that the title is, in anticipation, to be confirmed by the United States. It was so confirmed. Now, it may be, that William E. Kennedy, or those claiming under him, may have an equity superior to that of Duval. Of this, however, it does not become us to inquire, since this is a proceeding in a court of law, which looks alone to the legal title. As to this legal title, Joshua Kennedy is estopped by his deed from saying that it did not pass, and so, also, are his privies. It is manifest, from the deed itself; that the future confirmation was to operate an investiture of title in the purchaser. That an estoppel operates to pass the title, see 4 Kent, 98. We are, therefore, of the opinion, that the whole legal title-vested in Duval upon the confirmation by the Government of Kennedy’s title. If such were not the effect of the deed, it would present this singular and absurd contract, that Duval should pay interest yearly on the purchase money agreed to be paid for the land until the principal fell due, and this should fall due and be paid at the moment of time when it was ascertained the purchaser could never obtain what he purchased. The cases cited by the counsel for the defendant in error, clearly show that this deed, with possession taken under it, clearly estops the grantor.

5. As respects the proof of the deed^ from Kennedy to Duval, and the authority under which the attorney acted, it it is only necessary to recur to the rule, that a deed more than thirty years old, having nothing suspicious about it, is presumed to be genuine without express proof, the witnesses being presumed dead; and when it is found in the proper custody, and is corroborated by enjoyment under it, or by other equivalent explanatory proof, it is allowed to prove itself, or rather, its genuineness is presumed- Greenl. Ev. § 144; Phil. Ev. (C. & H.) note 903; Doe ex dem. Farmer’s Heirs v. Eslava, 11 Ala. 1028.

The deed before us comes fully up to the requirements of the rule stated, and we think the court did not err in admitting the proof concerning its execution, as no injury resulted to the opposite party.

6. The acknowledgment of the deed from Duval to Getz is sufficient. True, it does not state that the deed was executed on the day it bears date; but this is rendered unnecessary! by the fact that the acknowledgment was on the same day on which the deed was executed, and this has been held sufficient. Bradford v. Dawson, 2 Ala. 207.

We have now noticed the material points which will probably arise upon a subsequent trial. The other minor objections, as to the quantum of preliminary proof to let in secondary evidence, we deem it unnecessary to notice, as, in all probability, they may be avoided, or the proof may present them differently upon another trial.

It follows, from what we have said, as to the conditional character of Kennedy’s deed to Duval, that the judgment must be reversed, and the cause remanded.