United Leather Co. v. Proudfit

Hill, J. Willingham Loan & Trust Co., as agent for Mrs. Proudfit, executed a lease contract under seal for a certain store [405] house for the term of five years, and took notes, as agent, from the lessee, United Leather Co., payable to the principal each month. No authority from the principal to execute the contract under seal appears from the petition. Was the contract, therefore, invalid because authority under seal from the principal to the agent to execute the contract did not accompany the instrument? A deed to lands is not required to be under seal in this State. Civil Code (1910), § 4179; Atlanta &c. Ry. Co. v. McKinney, 124 Ga. 929 (5), 935 (53 S. E. 701, 6 L. R. A. (N. S.) 436, 110 Am. St. R. 215); Henderson v. Howard, 147 Ga. 371 (94 S. E. 251). A lease contract to land for years is likewise not required to be executed under seal. But the agent in the instant case did execute the lease under seal. This court has held a number of times to the effect that where an instrument is executed by an agent under seal, the authority of the agent to so execute must likewise be under seal, even though the contract executed is not required to be under seal, in order to give validity to the contract. Ingram v. Little, 14 Ga. 173 (58 Am. D. 549); Rowe v. Ware, 30 Ga. 278; Pollard v. Gibbs, 55 Ga. 45; McCalla v. American Freehold Land &c. Co., 90 Ga. 113 (15 S. E. 687); Overman v. Atkinson, 102 Ga. 750 (29 S. E. 758); Lynch v. Poole, 138 Ga. 303 (75 S. E. 159); Neely v. Stevens, 138 Ga. 305 (75 S. E. 159); Henderson v. Howard, supra. And there is good reason for this. An action on a simple contract not under seal (a promissory note for instance) must be brought within six years. Civil Code (1910), § 4361. But in a contract under seal the action can be brought at any time within twenty years. Civil Code (1910), § 4359. A “specialty” is a contract under seal. Civil Code (1910), § 4219. Therefore, when the agent in the present case executed the contract under seal, which it was not authorized to do by an instrument under seal, the agent made it a “specialty” which could, if valid, be sued on at any time within twenty years. And this act on the part of the agent increased the liability which would be incurred under a simple lease contract, and the principal can not be thus bound without specific authority accompanying the execution of the contract, or by some act of ratification, which we will consider later. It can not be assumed, merely because the contract was executed under seal, that the presumption is that it was done by authority of the principal. The principal repudiated it by her demurrer at the earliest possible time. [406] But the plaintiff insists that the ease of Drumright v. Philpot, 16 Ga. 424 (60 Am. D. 738), being older than the cases cited above, with the exception of the Ingram case, is controlling, inasmuch as the Ingram case has been “ virtually repudiated ” by this court. In the Drumright case the trial judge was requested to charge as follows: “ That an authority by deed is necessary, in order to bind the principal under seal; also that a partner, though the articles of partnership were under seal, is not empowered to bind his co-partners by deed, without an authority of as high a nature. That if the principal acknowledged that he gave the agent authority to execute a deed, yet the acknowledgment itself is not sufficient to prove it, without the production of an authority under seal.” He declined to do so, and exception was taken to such refusal. This court, speaking through Judge Lumpkin, held that such refusal to charge was not error, and affirmed the judgment of the lower court. It is true that the Ingram case, which is older and holds to the contrary, has been criticised; but so far as we are aware, it has never been expressly overruled by this court, and is authority on the question at issue as much as any of the other cases cited above. In delivering the opinion of the court in the Drumright case Judge Lumpkin said: “It is not my present purpose to controvert the old rigid doctrine of the common law, which asserts that no prior authority or subsequent ratification, either verbal or by writing, without seal, is sufficient to give validity to an instrument as the deed of the party. I yielded a reluctant assent to this threadbare technically [technicality], in Ingram vs. Little” (supra). But even in the Drumright case Judge Lumpkin said (16 Ga. 431) : “ If the act of one partner be a good and valid act in itself, it will not be rendered the less so, if done by a specialty, provided the seal do not vary the liability.” (Italics ours.) As pointed out above, the seal does increase the liability in the instant case. And it is worthy of mention in this connection that the learned Judge who delivered the opinion in the Drumright case also presided in the case of Rowe v. Ware, 30 Ga. 278, where the principle ruled in the Ingram case, while not mentioned specifically, was adhered to without dissent, and by a full bench. In Brown v. Colquitt, 73 Ga. 59 (54 Am. R. 867), Blandford, J., in discussing the Ingram' case said: “ The case of Ingram vs. Little is not to be extended beyond the facts therein stated. It is, to say the least of it, doubt [407] fuh” And he then proceeded to distinguish the Brown case from the Ingram case. In Smith v. Farmers Mutual Ins. Asso., 111 Ga. 737 (36 S. E. 957), Mr. Justice Cobb, after discussing the Brown case, supra, said that “ The case of Ingram v. Little is expressly referred to in the opinion, and the doctrine therein announced virtually repudiated. In Weaver v. Carter, 101 Ga, 213, Mr. Chief Justice Simmons says, in effect, that the decision in Ingram v. Little was practically overruled in Brown v. Colquitt. . . It may be safely said, in view of the foregoing, that the doctrine announced in Ingram v. Little is not, at this time, to be regarded as the law of this State.” Thus it will be seen that the learned judges who have written about the Ingram ease have dealt it some terrific blows; but the fact remains that it has never been expressly overruled by this court, nor has the legislature of the State changed the law. And until this is done, it must be recognized as the law of Georgia. And the doctrine announced in the Ingram case has been followed in cases subsequently to the cases in which the Ingram case was criticised. See the Lynch and Neely cases in 138 Ga., and the Henderson case in 147 Ga., supra. The Drumright case proceeds upon the idea that the execution of a deed must be under seal; but, as shown above, that is not necessary in this State. And the rule laid down in that case has never been followed in this State. It was said by Mr. Justice Evans in Lynch v. Poole, supra, that if an instrument executed by an agent be under seal, the agent’s authority to make it must likewise be under seal, although it may evidence a contract not required to be under seal to give it validity; citing Pollard v. Gills, 55 Ga. 45. And that is this case. What-< ever the rule may be in other jurisdictions, this court has held, with the exception of the Drumright case, that where an agent executes an instrument, whether it is required to he under seal or not, his authority to execute under seal must also be under seal, And the Ingram case, being older than the Drumright case, will control. We are asked to examine and overrule the cases holding to the contrary of the Drumright case. We have examined these cases, and decline to overrule them. 2. It is argued that even if the ruling in the Ingram case, and the other cases of like import, is not to be overruled, the defendant [408] has ratified the act of the agent and she is still bound by the contract, inasmuch as rent notes were executed by the lessee, payable to the lessor, and were delivered to the agent for the lessor. There is nothing in the record to show that the defendant has ever ratified the execution of the rent notes by accepting them verbally, in writing, or otherwise; On the contrary, it is alleged that she declined to yield possession of the premises to the plaintiff under the contract; and there is no allegation that she did anything which could be held a ratification of the contract executed by the agent under seal, or that the defendant has estopped herself in any way. In fact her whole attitude, as gathered from the whole petition, is one of repudiation of tire entire contract. The court did not err in sustaining the demurrer and in dismissing the case. Judgment affirmed. All the Justices concur, except Gilbert, J., disqualified.