Ramsey v. . Davis

Adams, J. The decision in Cadell v. Allen, 99 N. C., 542, is controlling in the case at bar. There the “indenture was between D. Cuthbertson, attorney for Stephen Lacy, and Aaron Stegall,” and was signed “D. Cuthbertson, attorney for Stephen Lacy.” In reference to the sufficiency of the deed the Court said: “But if the power of attorney were sufficient the deed in question was not executed in pursuance of and in the proper exercise of the power. It everywhere in the body of it purported in terms to be that of ‘D. Cuthbertson — attorney of Stephen Lacy,’> etc.; he — not his principal' — purported to convey the title, and as a consequence no title passed, for he had none to convey. The deed should, by its effective terms of conveyance, be and purport to be that of the principal, executed by his attorney, and to convey the estate of the principal. It iá not sufficient that the attorney intended to convey his principal’s estate, he must have done so, by apt words, however informally expressed, to effectuate that purpose. The distinct purpose of the principal to convey and the necessary form and operative words to convey his estate must appear in the body of the deed in all essential connections. His name should be signed, and purport to be signed, and his seal affixed by the attorney, but the signing will be sufficient, if it be by the attorney for the principal. In Oliver v. Dix, 21 N. C., 158, the deed in question, very much like the one before us, ran throughout in the name of ‘Thomas Dix, attorney in fact for James Dix,’ and was signed and sealed in the same way. Chief Justice Ruffin, delivering the opinion of the Court, said: ‘It is clear that the deed offered to the plaintiff is altogether insufficient. No doubt the defendant intended to comply with the contract, and both he and the plaintiff thought he was doing so. But the deed does not purport to be the deed of James Dix, the owner, but of Thomas, as the attorney; allusion is not had to the method of signing only. It may not be material whether *397 it be signed J. D., by T. D., or T. D. for J. D. But tbe instrument must profess in its terms to be tbe act of tbe principal.’ To tbe same effect are Scott v. McAlpin, 4 N. C., 587; Locke v. Alexander, 8 N. C., 412; Redmond v. Coffin, 17 N. C., 437; Duval v. Craig, 2 Wheaton, 45, and note on page 56; Appleton v. Brinks, 5 East., 148.” See, also, Woodbury v. King, 152 N. C., 676; Tiger v. Band Co., 41 L. R. A. (N. D.), 805, and annotation. It will be noted tbat tbe acknowledgment in tbe present case is not tbat of tbe principals, but of “J. H. Davis, attorney in fact.” Tbe appellees contend tbat if tbis be granted, tbe defective instrument operates as a contract to convey and vests in tbe grantee an equitable title to tbe land. It is true tbat equity, regarding tbat as done wbicb ought to be done, will protect and enforce rights arising from instruments wbicb are defectively executed on tbe ground tbat they may operate as contracts to convey. Willis v. Anderson, 188 N. C., 479; Vaught v. Williams, 177 N. C., 77; Robinson v. Daughtry, 171 N. C., 200; Woodbury v. King, supra; Rogerson v. Leggett, 145 N. C., 7. Tbis principle applies when'equity is pleaded or facts as a basis of tbe equity are sufficiently alleged and all tbe parties to be affected are before tbe court. In tbe case before us, as in Cadell v. Allen, supra, no equitable cause of action" is alleged; no equitable relief is demanded in tbe answer. Here, as was said by Merrimon, J., “the action and tbe cause of action are simply at law,” and so far as tbe record shows, neither J. H. Davis nor Fanny Rhodes nor Laura O. Davis (Hamlin) is a party to tbe present proceeding. Tbe instrument therefore is not enforceable as a contract to convey. Tbe judgment-is Reversed.