Blood v. Goodrich , 9 Wend. 68 ( 1832 )

By the Court,

Savage, Ch. J.

The first question is whether the agreement of December 11, 1828, is binding upon all the defendants ? This contract is the basis of any liability which may rest upon any or all of the defendants. It was signed by Kingsbury, “ for self, Goodrich and Champion ” The proof of the execution by Kingsbury proves nothing against the other defendants. It shews the instrument to be the deed of Kingsbury: but to make it the deed of Goodrich and Champion, something else must be proved ; it must be shewn that Kingsbury had authority to act for them; and as he professes to act by deed, an authority from them under their seals is indispensable. “ An authority to execute a deed must be given by deed.” 1 Comyn’s Dig. Atty C. 5. In the case of Banorgee v. Hovey, 5 Mass. R. 11, the action was assumpsit for money advanced to one Smith, who was concerned with and had authority from the defendants to procure it. Smith gave a bond, which his authority did not specify, and the court held the defendants not bound, as Smith attempted to bind his partners and employers by deed without any authority so to do. In that case the objection is admitted to be technical, but not therefore to be disregarded. 5 Bin. 613, and 1 Yeates, 200, are to the same effect. Even partners are not permitted to bind their co-partners by seal, unless the co-partners are present and assenting. In Ball v. Dunsterville and another, 4 T. R. 313, the action was on a bill of sale executed by one of two partners, in the presence and by the authority of the other, but there was ^ut one seal; the court held the execution sufficient, and they relied principally on this deed having been executed by one defendant, for himself and the other, in the presence of that other. And the same court, in Harrison v. Jackson and others, 7 T. R. 207, held the instrument invalid against partners, when that circumstance was wanting. There the execution was like the execution of the agreement in this case. One of the partners, Sykes, signed “ For Jackson, self and Rushforth, W. Sykes.” And the court held it was not obligatory upon Jackson and Rushforth, as they were not present and assenting. In pursuance of this principle, this court held, in Mackay v. Bloodgood, 9 Johns. R. 285, 6, that a bond signed by one of two partners, with the partnership name, was good, when the other partner had seen and read it, and had assented that his partner should execute it for both, although he was not actually present when the signature was put to the instrument, but was about the store when the bond was signed. The same point was recently before this court in McBride v. Hogan, 1 Wendell, 326, and decided in the same way. So in the case of Striglitz v. Egginton and others, 1 Holt, 141, where one of the defendants signed a bond, “ For self and partner,” Chief Justice Gibbs says, “ the authority to execute must be by deed.” He adds, that if one partner who does not execute, acknowledge that he gave an authority, that must be presumed to be a legal authority, and it must be under seal and produced. One man cannot authorize another to execute a deed for him but by deed, and no subsequent acknowledgment will do.

The defendants in this case were not partners, but tenants in common, of the lands in Ohio, which were to be conveyed to the plaintiff. One tenant in common has no power as such to convey or dispose of the lands of his co-tenant, and cannot execute a deed of the lands of his co-tenant in any other manner than a stranger. That an authority to execute a deed must be given by deed, to render the deed valid, was recognized by this court in Van Ostrand v. Reed, 1 Wendell, 431. In that case the judge at the trial rejected the evidence of the person whose name had been used, when called to prove that he authorized it—that was not an action upon the instrument, but where it came in collaterally. This court thought the evidence should have been received to disprove fraud ; to prove which, the fact had been shewn that the name of the witness had been put to the instrument by others. That case, however, recognizes the general principle. An authority under seal should therefore have been produced from Goodrich and Champion to Kingbury, allowing him to execute the contract in question, or all contracts generally respecting their lands ; a parol authority is not sufficient. And this comports with other principles. No man shall be divested of his interest in real estate, but by his own acts and by operation of law; if an authority by parol may be shewn, a man may be made to convey all his estate, and the conveyance rest entirely in parol. As to Goodrich, all his acts and his letters recognize the contract as his; there is, therefore, something more than mere parol declarations to charge him ; and I am inclined to think that as to him, if under the circumstances the evidence was admissible, an authority was sufficiently shewn—it was not by deed, but he admits in writing that he had executed a deed. It was said by Ch. J. Gibbs, in Striglitz v. Egginton, that no subsequent acknowledgment will do. A subsequentporoZ acknowledgment was probably intended, but I should be unwilling to say that a subsequent written acknowledgment, accompanied by acts recognizing the deed as the deed of him whose name had been used, was not proper evidence to be submitted to a jury. It is indeed said in the case last referred to that if an authority be admitted by parol, it must be presumed to be a legal authority under seal, and must be produced •, and such would seem to follow from general principles. The plaintiff should therefore have either produced the authority from Goodrich and Champion to Kingsbury, or given the defendants notice to produce it; and on their neglecting or refusing to do so, inferior evidence and such acts as would imply an authority would be admissible. It seems to me therefore that before any evidence could strictly and regularly have been received of the acts and acknowledgments of Goodrich, notice should have been given to pro(juce the authority by virtue of which Kingsbury acted.

The same observations apply to the evidence respecting Champion’s admissions; they were merely parol and general that he owned lands in Ohio in company with the other defendants, and that Kingsbury was their agent to sell and dispose of them. The legal presumption is, that he spoke of a legally authorized agency; but no appointment is produced, no notice to the defendants to produce it, no act of Champion’s in affirmance of the contract made by Kingsbury, and no allusion in his conversation to this case. To admit evidence of this description would be a total dispensation with the rule that an authority to execute a deed must be by deed ; it would be dangerous in its consequences, and alarming to the owners of real estate.

If, however, the contract of the 11th December had been proved, that was all the contract with which Champion had any connection even nominally and by it Blood’s conveyance on the 1st of March, 1829, was a condition precedent to the conveyance to be made by the defendants; there is no pretence that a conveyance by Blood was then offered. Indeed, it is proved by the declarations of Blood that on that day an offer was made by the defendant Goodrich to fulfil the contract on his previous performance. If, therefore, the plaintiff had declared upon the sealed contract, and its execution by all the defendants had been proved, no cause of action is shewn, but is disproved. The plaintiff, however, does not rely upon the sealed contract, except as inducement to a parol contract—a parol contract to sell and convey lands; a contract void by the statute of frauds, made by two of the defendants only, and without any authority whatever from the third. The plaintiff contends that the parol contract of the 31st January, 1829, was valid as a mere extension of the time of performance of the sealed contract. The rule is well established.. that a written instrument shall not be contradicted by parol, but any ambiguity about it may be explained, or an additional agreement affecting the subject may be made by parol when a parol agreement is valid. Such was the case of Franchot v. Dart, 5 Cowen, 506. There no place having been mentioned in the agreement itself where it should be performed, the parties appointed a place by parol. To make that case applicable here, it should have been shewn that no time had been appointed in the written contract. Time here was of the essence of the contract, and the plaintiff having failed to perform on his part, the defendants are discharged from the contract. There are cases when the time of performance of a written contract may be enlarged by parol; but, I apprehend, that doctrine does not apply to contracts for the conveyance of land, or to any other contract, where the contract itself would not have been valid if made by parol. In Keating v. Price, 1 Johns. Cas. 22, the court say: “ This being originally a simple contract, we are of opinion that it was competent for the parties, by parol agreement, to enlarge the time of performing it.”

It was further objected that the plaintiff should have prepared and tendered a deed to each of the defendants for execution. I understand the rule in this state to be, that the party entitled to the deed must demand it; if it is not refused, he should, allowing a reasonable time for the defendant to prepare and execute it, present himself again to receive it, 7 Wendell, 129; but if, on demand, the defendant positively refuses, it would be idle to make another demand. So, too, the party is entitled to the whole title, and if upon demand any one of those whose duty it is to convey, refuses to do so, it would be unnecessary to make demand of the others. In this case the demand was made of Goodrich, who refused ; there was therefore no necessity to call on Kingsbury or Champion, for if they should convey, the plaintiff would not have the whole title.

It is unnecessary to discuss any other points in this case. In my opinion the plaintiff failed to prove the contract of December 11th, 1828, and therefore a new trial must be granted.