Merchants Bank & Trust Co. v. Wimbish

Adams, J. Tbe only appellants are John L. 'Wimbisb and Riddie E. Wimbisb, bis wife. Conceding tbe right of tbe plaintiffs to have tbe deeds set out in tbe first and third issues canceled and to bave execution issued on tbe judgments, tbe appellants prosecute tbe appeal against their codefendants. It is alleged in tbe complaint that 'these deeds when signed by Wim-bisb and bis wife were blank as to tbe grantees; that they were to be held in escrow by Hanes until purchasers of tbe property were found; that tbe names of tbe purchasers were then to be inserted and tbe deeds delivered; that Hanes inserted bis own name as grantee in two of tbe deeds and Mackie’s in another. Tbe appellants admit these allegations and say that tbe pretended conveyances are void and that they should be canceled unconditionally. Tbe other defendants join issue and contend that tbe deeds convey a good title. It will be seen, then, that tbe appeal involves a controversy between tbe defendants, tbe question being whether tbe position of tbe appellants can be maintained, or whether tbe judgment they tendered should bave been signed. There is an unbroken line of our decisions which bold that a bond signed and sealed in blank is incomplete and that authority to make a deed cannot be conferred verbally, but must be created by an instrument of equal dignity. Tbe first of these cases is McKee v. Hicks, 13 N. C., 379, in which it is said that if an instrument with a seal to it is not completely executed by signing, sealing, and delivering, it cannot be made complete by any act of an unauthorized agent. Approving this decision Chief Justice Ruffin remarked: “No person will argue in favor of a deed of conveyance in which tbe name of tbe bargainee, for instance, or tbe description of tbe land, were inserted after execution by tbe vendor and in bis absence, although done without corruption, and by some person whom be requested to do it. It would subvert tbe whole policy of tbe law, which forbids titles from passing by parol and requires tbe more permanent evidence of writing and sealing. . . . But it is said tbe party ought to be bound, because tbe words were inserted by bis agent. That is assuming tbe position in dispute. There might be an agency to receive tbe money or make tbe purchase, which would in law be sufficient, when there was not an agency to bind tbe principal by this form of security. Tbe very question is, whether tbe person, who wrote out tbe bond and delivered it was in fact and in law *555 the agent for that purpose. To determine it, we are obliged to recur to the rule of law which defines what may create an authority to make a deed, and by what evidence that authority may be established. If it cannot legally exist without a deed, then he who had only a verbal authority was not in law an agent for this purpose, though he might have been for others Davenport v. Sleight, 19 N. C., 381. In Graham v. Holt, 25 N. C., 300, the Court in an opinion by Daniel, J., again approved the principle: “The notion with us has always been, what we learned from Co. Lit., 52(a), and the Touchstone, 57, that he who executes a deed as agent for another, be it for money or other property, must be armed with an authority under seal. McKee v. Hicks, 13 N. C., 379; Davenport v. Sleight, 19 N. C., 381. The insertion of the sum in the blank space was intended to consummate the deed; it was done without legal authority, and the instrument is void as a bond.” Similar opinions are expressed in many of the later decisions, among them, Marsh v. Brooks, 33 N. C., 409; Bland v. O’Hagan, 64 N. C., 471; Barden v. Southerland, 70 N. C., 528; Cadell v. Allen, 99 N. C., 542. In some of these cases the instrument under consideration was a bond and not a deed, but as said by Battle, J., in Blacknall v. Parish, 59 N. C., 70, the principle is the same. The defendant in the case last cited desiring to sell his land prepared a deed purporting to convey the title in fee, but left blanks as to the price and the name of the grantee. He authorized another person to fill the blanks and to deliver the deed when such person found a purchaser. The plaintiff bought the land and the agent filled the blanks and delivered the deed. The court concluded that while the instrument could not operate as a deed it was enforceable as a contract for the conveyance of land and that the plaintiff was entitled to a decree for specific performance. It is clear, then, that the trial judge made no error in signing the judgment appearing of record and in refusing to sign the one tendered by the appellants. True, the rights of the defendants inter se are yet undetermined, but no issues were submitted or tendered as to the controversy between them, presumably because the property will be exhausted in payment of the judgments against Wimbish. We find No error.