Jackson ex dem. Lloyd v. Titus — 2 Johns. 430

Majority

p. 429

Jackson, ex dem. Lloyd, against Titus.

Headnote

Where í¡. wrote his name, and affixed his seal .on the back of a lease, and it was agreed between him and T. that O. should write an assjgnmentover the signature and seal, for the absolute conveyance of the lease to T. and should beep thelease a certaintime, and C. after-wards wrote' the assignment, and delivered the lease to T. it was held, that the affixing the hand and seal to ablank paper, was not a note in writing within the statute of frauds, and that the assignment was a nullity.

This was an action of ejectment, for lands in.the village of Fort Anne, in the county of Washington. The cause was tried before Mr. Justice Spencer, at the Washington circuit in June, 1807.

The plaintiff had occupied the premises as his own, about three years, but had not occupied the same for the last seven years. The defendant was in possession at the commencement of the suit. The lessor of the plaintiff, while in possession, built the house on the premises, and when he went away, he left his family in the house. He went away, as was supposed, on account of debt. Upon the evidence of these facts the plaintiff rested his cause, and the defendant’s counsel moved for a nonsuit, which was refused by the judge. The defendant then produced in evidence a lease in fee of the premises, from one George Wray to the lessor of the plaintiff, dated the 1st January, 1795, and an assignment thereof endorsed thereon from the plaintiff to Jonathan Titus, (under whom the defendant holds by assignment) of all his estate in the premises for the consideration of 200 dollars, dated the 17th April, 1798. To prove the assignment, a sub.scribing witness was called, who testified, that he saw the plaintiff write his name, and" affix his seal, but that the assignment was not then written: that it was agreed by the parties, at that time, that the witness should write the assignment in such a manner as to convey the premises absolutely to J. Titus, and to keep the same a certain time, and that if within that time the plaintiffshould settle with J> Titus, for the consideration money, the

p. 430

lease was to be returned to the plaintiff, otherwise, tobe delivered to Titus — that the witness, afterwards, wrote the assignment, and the time being expired, he delivered the lease and assignment to Titus — that he put in the consideration agreed upon by the parties, and he knew that Titus had previously advanced moneys for the plain* iff. A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containingthe above facts.

Z. R. Shepherd, for the plaintiff.

The authority given to Coffin, to write an assingment, and deliver it was void. No parol authority can authorize the sealing or delivéry of a deed. The sealing of a blank-paper is a perfect nullity. If the assignment is to have any effect, it must be from the beginning ; no subsequent act of Coffin, under the parol authority given to him, can make it valid. It is against the very intention of the statute of frauds. If a party himself cannot make a parol contract or agreement concerning land, then, surely, he cannot give a pa-rol authority to a third person to execute a deed for him. An agent is bound to pursue the .power with which he is clothed; and unless that power is reduced to writing, it will be extremely difficult to determine whether the agent acts within the scope of his authority or not.^[2] One of two partners has as much power to bind his co-partner, as Coffin could possibly have in this case, yet one partner cannot seal or execute a deed for the other.

„ . Toot if bfcmner, contra.

A person may execute a deed, and deposite it with another, with a parol authorh ty to deliver it, on the happening'of a certain event, or the performance of a certain condition. Such an authority need not be in writing. If the date of such deed be left blank, and the person with .whom it is- left be authorised by parol to fill up the blank, and deliver the deed, the delivery would- be valid. The present case is different from the one in which a. person is authorized, to seal and

p. 431

deliver a deed for another; The party had already affix-ea his seal, and Coffin was authorized to fill up the blank/ and deliver the'assignment; This may be considered as a note or memorandum in writing, and,'therefore,-valid by the statute of frauds;

[The counselfor the defendant contended further, that the plaintiff not having proved any title by deed, or a possession for 20 years, that there ought to be a judgment of nonsuit, but the court said, that as that wife not made a point at the trial, it Was not now’to be argued.^[2] ]

delivered the opinion of the court. Admitting that the lessor of the plaintiff did not show a sufficient evidence of title to entitle him to recover, the' defendant has supplied that defect, and showed it for him.He claimed title under the plaintiff, and produced alease in fee from George Wray to the plaintiff; and unless the defendant has succeeded in deducing a title to himself under that lease, the plaintiff must recover, upon the view of the whole case. The assignment of the lease to Jonathan Titus was, in our opinion, a nullity.- The affixing of-the hand and seal to a piece of blank paper, never can be considered an assignment by deed or note in writing, within' the requisition of the statute of frauds.And to allow the subsequent filling up of.the deed by a third person., to have relation back to the time of the sealing and delivery of the blank paper, in consequence of some parol agreement of the parties, is to open a door'' to fraud and perjury, and to defeat the wise and salutary provisions of the statute. The case of an -endorsement on a blank note, (Doug. 514.) has no application to this case, which arises under the statute of frauds.^[1] We are.accordingly of opinion, that judgment must be .entered for the plaintiff.

Judgment for the plaintiff.

(a.) (a.) ) Vide Ulen v. Kitteridge, 7 Mass. T. R. 233. Hodgkins v. Bond, Adams, 284.