The marriage articles prescribed the manner in which Mrs. Arnold was to exercise her power over the property settled upon her. The trustees were authorized to dispose of it to such person or persons, and in such manner and form, as she, notwithstanding her coverture, by any deed or writing, under her hand and seal; or by her last will and testament, or writing in the nature of a last will and testament, should direct, limit or appoint.
Conceding that the actual participation of the trustees in the act would not be essential to effect a disposition of the property, yet the form of the disposition by Mrs. Arnold must conform to the direction of the articles. As the disposition under which the plaintiff claims was designed to operate in the lifetime of Mrs. Arnold, it must, to be valid, be by an instrument under seal.
The question, therefore, is, whether the paper in question, *Page 332 defective as it is by the omission of the name of the plaintiff as the party in whose favor it is alleged to have been executed, can nevertheless be sustained as a deed, mortgaging the property to him. If we take into consideration only what is written, the paper is wholly without meaning. A transfer to a person not named, or in any way described or designated, is, unconnected with anything else, a mere nullity.
Upon principle it would seem that, as the paper was in such a condition when issued and delivered by her, a subsequent change in its words, which, by filling up the blank with the plaintiff's name, would make it significant of its office and intention, could not be considered in law her written act, though done pursuant to her direction, as proved by parol evidence.
To hold thus would let in some of the mischiefs which the authors of the marriage settlement may be supposed to have intended to guard against, in requiring a writing under seal to effect a disposition of the property. Still, if there is a satisfactory course of adjudication to that effect, a rule of property has been established which we are bound to follow.
But, although there is some diversity in the cases, I am of the opinion that none of those of modern date countenance the method of creating a title to, or a lien upon, land which it is sought to uphold in the present case. In the first place, the cases arising upon bills and notes are plainly distinguishable.
Commercial paper, under the custom of merchants and the statute of Queen Anne, has always been considered as forming an exception to many of the rules of the common law; and there is no feature in which there is a wider departure than the one relating to the issuing of paper in blank.
We have lately decided, in conformity with a steady course of modern decisions, that, if a man issue a bill or acceptance in blank as to date, amount or time of credit, and it be filled up so as to create obligatory paper for any amount, and be passed into the hands of a bona fide holder, it becomes valid as against the party issuing it.
(Van Duzer v. Howe, 21 N.Y., 531.) But no one would be bold enough to contend that a paper intended to operate as a mortgage could be put in circulation in such a shape, and by *Page 333 filling up could be made obligatory on any one. This doctrine is limited strictly to mercantile paper, and is based solely upon its negotiable quality, which gives a bona fide holder, in many instances, a better title than the original party had.
There is another set of cases having a closer connection to the one under consideration, but which, I think, are plainly distinguishable from it. It should be remembered that, in the bond and collateral instrument before us, the blank for the name of the creditor has not to this day been filled up by any one. The papers were produced to the Superior Court at the trial in the same imperfect shape as when Mrs. Arnold parted with them.
There is no allegation in the complaint, and there was no offer to prove, that she ever directed or authorized any one to fill up the blank with the name of the plaintiff, either absolutely or conditionally.
The plaintiff's claim, in substance, is, that the papers, in their present imperfect condition, could, by the fact of a delivery for a valuable consideration to an innocent party, be made valid assurances against Mrs. Arnold in the same manner as a note or bill made indorsed or accepted in blank could be negotiated to a bona fide holder for value. None of the cases relied on sustain such a position.
In Knapp v. Maltby (13 Wend., 587), certain papers essential to enable the plaintiff to maintain the action, and which had been signed and sealed by the parties to be bound by them, were placed in the hands of an agent, with authority by parol to make any change in them, before delivery, which a person named might suggest in order to make them acceptable to the party to whom they were to be delivered.
An alteration, not at all material to their sense, was made pursuant to this authority, and the instruments were then delivered to the defendant, for whom they were intended, in order to fulfill a condition precedent upon which his liability attached; and it was held that they were valid and sufficient. InWoolley v. Constant (4 John., 54), an alteration was made in the bill of sale of a vessel, by the assent of the parties, after it had been delivered, by filling up certain blanks for the recital of the register.
In trover for the vessel, it was contended that these alterations rendered *Page 334 the conveyance void; but it was held otherwise. The court considered that the bill of sale was sufficient to have passed the title to the vessel if the blanks had remained unfilled.
The point in Penny v. Corwithe (18 John., 499), was, whether the parties to a sealed submission to arbitrators could by consent make an alteration in it after delivery; and it was held they could, and that the instrument then took effect as a new execution of it. Ex parte Kerwin (8 Cow., 118) was like Knapp v. Maltby. An alteration was made in an appeal bond by one of the obligors, by the direction of the other, after it was subscribed and before the delivery; and the bond was held effectual.
None of these cases, I think, have any material bearing upon the one under review. A looser doctrine than the one which now prevails once received some countenance in the English courts; but the subject has been reconsidered, and the principle for which the plaintiff contends has been overruled by a well-considered judgment of the Court of Exchequer. (Hibblewhite v. McMorine, 6 Mees.
Welsb., 200.) The instrument there was the transfer of shares in a corporation, which was required to be by deed; and it was held that a transfer delivered in blank as to the purchaser's name did not pass any title. This case is supposed by the counsel for the plaintiff to be hostile to that of Kortright v. The Commercial Bank ofBuffalo (22 Wend., 348). The difference is that, in the latter case, the transfer was not required to be by deed.
The instrument which it was held might be delivered in blank was a power of attorney to make the transfer on the books. Neither the power nor the transfer was required to be under seal. The case was, therefore, one which might be, and in fact was, brought within the theory of mercantile paper; whereas, if the transfer had required a specialty, the instrument must have been sufficient in form when it took effect by delivery, or it would not have conveyed a title. I am for affirming the judgment of the Supreme Court.
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