Townsend v. Corning , 23 Wend. 435 ( 1840 )

Bronson, J.

By the Court, It was admitted on the argument, that Baldwin, the attorney, is not bound by the deed. Although he sub- [ *440 ] scribed his name and affixed his *seal, there are no words of contract on his part; and whether he intended to bind his principals or not, it is apparent from the whole instrument that he did not intend to contract for himself. Catlin v. Ware 9 Mass. R. 218.

II. This is not the deed of the plaintiffs and Isaiah Townsend; for although they are^named in it with the apparent intention of becoming parties, they have^executed the instrument, either in person or by attorney. Their names and seals at the end are not only wanting, but as if to put the matter beyond all doubt, the in testimonium clause states, that Baldwin of the one part, and Corning of the other, have set their hands and seals. It is true, that Baldwin is described in the contract as attorney, but it was nevertheless his hand and seal, and not the hands and seals of the principals, which was affixed to the deed. Although the principal will sometimes be bound where the agent, as such, does an act in pais, though in his own name, or makes a commercial or other contract not under seal, without subscribing the name of the principal; yet the doctrine is well settled, in relation to solemn instruments under seal, that the principal will only be bound where he is, both in form and substance, the contracting party. It must be his deed. If it be the deed of the agent only, it will neither pass the title of the principal, nor bind him as a covenantor.

The earliest adjudged case I have met with, going directly to the point in question, is reported in Moore, p. 70, pl. 191. The king had, by letters patent, authorized his surveyor to make leases ; and the surveyor made a lease, commencing thus : “ This indenture made between our lord the Icing of the one part, and J. S. of the other part, witnesseth.” Here, as in the case at bar, the principal was properly named in the instrument as the contracting party. But the deed concluded as follows : “ In testimony whereof, the surveyor hath hereunto set his sealand the lease was held to be void. The court said, the surveyor should not have put his own seal to the lease, but the seal of the king, because it was not a lease from the king without his seal: he should say, the king, by A. B., hath affixed his seal. This was in 6 Elizabeth. The same question was presented more *than a century before, on a special verdict, in the case of Greenfield v. Strech, Dyer, 132, [ *441 ] but no judgment seems to have been rendered. Combe’s case, 9 Coke, 76, is generally regarded as the leading authority on this question. The second resolution in that case, was “ that when any 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.” The same rule is laid down in Bac. Abr. Leases, § 10 ; where it is said, that the attorney only has authority “ to supply the absence of his master by standing in his stead, which he can no otherwise perform than by using his name, and making them [leases] just in the same manner and style as his master xoould do if he were present; for if he should make them in his own name, though he added also, by virtue of the letter of attorney to him made for. that purpose, yet such'leases seem to be void.” As this doctrine has not been departed from, I shall content myself with barely referring to some of the cases where it has been recognized and enforced. Frontin v. Small, 2 Ld. Raym. 1418, and 2 Strange, 705, S. C. Reynold v. Kingman, Cro. Eliz. 115. Kenyon, Ch. J. in White v. Cuyler, 6 T. R. 176. Wilks v. Back, 2 East, 142. Bogart v. De Bussy, 6 Johns. R. 94. Stone v. Wood, 7 Cowen, 453. Spencer v. Field, 10 Wendell, 87. Wells v. Evans, 20 id. 251. Fowler v. Shearer, 7 Mass. R. 14. Elwell v. Shaw, 16 id. 42, and 1 Greenl. 339, S. C. Lutz v. Linthicum, 8 Peters, 165. The most distinguished elementary writers lay down the same doctrine. 2 Kent, 631. Story on Agency, 137. It seemed to be supposed that a different rule was laid down in Wilks v. Back, 2 East, 142; but as I understand that case, it fully recognizes the doctrine of the other cases. The question was on the form of executing a bond of submission, where the intention was to bind both Wilks and Brown; and Wilks was to execute for himself, and as attorney for Brown. Wilks first sign-[*442] ed and sealed for himself, and then added, “for James *Brown, Mathias Wilks,” with a second seal. Although the better form would have been to sign thus: ‘‘ James Brown, by Mathias Wilks, his attorney,” the court held it a good execution of the deed for, and in the, name of the principal. Instead *of departing from the old rule, they expressly recognize the doctrine that the act done, must be the act of the principal, and not of the attorney.

In several of the cases to which I have referred, the attorney, after describing himself as such, or setting out his authority, has himself granted or agreed, instead of framing the instrument, as has been properly done in this case, so as to make the principal grant or agree. But it is not enough that the body of the instrument was drawn in the proper form. It 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.

It is said that this is a technical rule, and should yield to the plain intent of the parties. It is very far from being clear in this case that Baldwin intended to bind his principals. After naming the plaintiffs as contracting parties in the body of the instrument, the attorney was careful, in the conclusion, not only to execute, but to say that he executed for himself only. This fact, taken in connection with the subsequent ratification by John; Townsend, goes far to prove that the attorney did not intend to bind his principals. It looks very much as though Baldwin, either from a doubt of his authority, or as a matter of prudence, meant to refer it to his principals to decide for themselves whether it should be their contract.

But waiving this consideration, and assuming that Baldwin meant to bind his principals, his intention can only govern when it has been manifested in the forms prescribed by law. It is not enough that a man intends to do a legal act, unless he uses the' legal means for accomplishing his object. A man may intend to alien his lands without writing, or to pass a fee simple interest without deed, but his intention will fail for want of legal execution. The law is full of just such technical rules as that which we have been considering — rules which require parties to act in a particular man- [ *443 ] ner, *and defeat their purpose when they neglect the forms and solemnities prescribed by law.

There can be no great hardship in applying the rule in this case, for the plaintiffs have got their land, and can lose nothing more than a good bargain. But the rule has been applied, as all the rules of law should be, without'regard to the consequences which may follow. I will only refer to a single case. Elwell v. Shaw, 16 Mass. R. 42, and 1 Greenl. 339, S. C. The attorney, who had authority to sell and convey the demandant’s lands, made a deed, by which, after reciting the power, he granted, by virtue of it, to the defendant and another; and yet the demandant recovered the land, on the ground that the attorney had not properly executed his authority — it was the deed of the attorney, and not of the principal. The intention of the parties was apparent, and the court said, they had examined the question “ with a strong wish to discover some ground which would authorize a decision according to the apparent equity of the case but they could discover no such ground. After referring to the cases they say, “ the current of authorities being thus strong, we must remember that stare decisis is a rule of no inconsiderable importance, if we wish to preserve the stability of judicial decisions ; and to relieve the law, as much as possible, from the reproach of uncertainty, which has so often been urged against it.” When the case afterwards came before the supreme court of Maine, they felt themselves bound by the same considerations.

III. The defendant is not bound by the alleged contract. Although he signed and sealed, the execution of the instrument was not completed, and it is not his deed. What are the facts when taken in connection with the legal principles already considered ? A writing inter partes is prepared, by which one party is to covenant for the payment of money, and the other for the conveyance of lands — each of these mutual covenants being the consideration for the other. One party sits down and executes the deed; but the other stops short, and for some cause — no matter what — does not execute the instrument. It is impossible, I think, to maintain, that the party who has refused or neglected to bind *himself, can set up [ *444 ] the instrument as a binding contract against the other party. There was, I think, a condition, implied from the nature of the transaction, that the signing of one party should go for nothing, unless the other signed also.

But whether I have assigned the proper reason for the rule or not, the conclusion to which I have arrived, that the party who signs cannot be bound, where the execution is thus incomplete, is not only in accordance with the justice of the case, but is well supported by authority. All of the cases agree in the general doctrine that the deed is void ; and Frontin v. Small, 2 Ld. Raym. 1418, and 1 Strange, 705, goes directly to the point in question. The attorney, in her own name made a lease to the defendant, reserving rent, which the defendant on his part covenanted to pay. In an action on the covenant, for rent in arrear, it was averred that the defendant entered and enjoyed the property. Reeve, who argued for the plaintiff, admitted that the lease was void because it had not been executed by the principal, but he insisted that covenant might be maintained on the defendant’s agreement; and he said, it was very hard that the defendant should enjoy the house as he did, and not be forced to pay the rent. But the court held the covenant, as well as the demise, void, and gave judgment for the defendant. This decision has been recognized as good law in all the subsequent cases. I will only refer to two in this court, Bogart v. De Bussy, 6 Johns. R. 94, and Spencer v. Field, 10 Wendell, 87. The distinction taken in the last case in favor of an action by another plaintiff, .whether well or ill founded, does not touch the present question.

I conclude, therefore, that this instrument was void, and that neither of the parties was bound by it.

IV. If the instrument was void at the time, nothing which has since happened can make it the deed of the defendant. John Townsend, after waiting nearly two years, endorsed his approval upon the contract. If such an act by all of the vendors could be of any importance, it is sufficient to remark, that the other five have not signified their approval to this day. [ *445 ] *But it is said, that the plaintiffs have affirmed the contract by bringing this action. It is one answer to that argument, that neither Isaiah Townsend, who is dead, nor his heirs at law, in whom his share of the title to the land is now vested, are parties to this action. They have not, therefore, affirmed the conkact. But if all the vendors had been alive and had joined in the action, it could not alter the case. The mere act of setting up the contract and claiming a benefit under it, would not make it their deed, or bind them as covenantors, to convey the land. The vendee would, perhaps, have a remedy in chancery on payment of the money : but that was not the arrangement contemplated by the parties. The defendant has never consented to bind himself by a covenant to pay the money, without receiving a covenant for the conveyance of the land. He was to have a contract which could be enforced at law as well as in equity.

But there is another, and, I think, a conclusive answer to the whole argument about the subsequent ratification of the vendors. Let us make the case much stronger than it is, and suppose that all, the vendors had, before bringing this action, affixed their hands and seals to the contract. If it was before void as-against the vendee, no possible act of the vendors alone could make it obligatory upon him. Nothing but his own act, such as a re-execution or new delivery of the contract, could give it vitality as against him. See Ludford v. Barber, 1 T. R. 86. There was a lapse of two years and a half from the date of the contract to the bringing of this action, within which period there had been a great falling off in the value of city and village lots. It would be most extraordinary if the vendors could wait and speculate upon the market, and then abandon or set up the contract as their own interests might dictate. But without any reference to prices, and whether the delay was long or short, if this was not the deed of the vendee at the time it was signed by himself and Baldwin, it is impossible that the vendors, by any subsequent act of their own, without his assent, could make it his deed. There is, I think, no principle in the law which will sanction such a doctrine.

*1 have taken no notice of the question of variance which was [ *446 ] raised on the argument, because both parties seemed desirous of having a decision on the merits.

Judgment for defendant.