Maule v. Weaver

Gibson, C. J. How it came to be thought by the profession at an early day, and to be handed down to the present, that an action of covenant might be maintained against the grantee in a deed-poll under any circumstances, or against any one else w'ho had not sealed it, I cannot imagine. It appeared to us in Wilson v. Buchman so evident on principle that it could not, that we ruled the point in a dozen of words, and directed the case not to be reported, as it seemed to contain nothing which could be of use as a precedent; but in that we wrere mistaken. Though the principle of that case has been recognised as a general one, but subject to exceptions founded on the royal prerogative, or the customs of particular places, it seems to have been thought that in all cases where a grantee takes an estate by a deed-poll, he may be compelled to perform the conditions of the grant by an action of covenant instead of an action of debt or assumpsit; and this supposition had its root in the case obscurely stated in Co. Litt. 331 a; but it is clearly shown by Mr. Platt, the only lawyer who has searched the original roll, that there has been a prodigious misconception of tho language of Lord Coke, which was predicated, not of an action of covenant, but of an action of debt. Yet the same misconception existed in the mind of Chief Justice Abbott, in Burnett v. Lynch, by which, however, he affirmed the principle to which he supposed the case puf by Lord Coke to be an exception. But the singularity of the exception ought to have sent the profession to the YearBooks for the original cases to which references were given, and in 332 which they would have found that the action in each of them was not covenant hut debt. It ought to have occurred to them that forms of pleading are touchstones of the law, and that the most dexterous pleader would find himself unable to make a successful profert of a deed-poll as the act of one who had not sealed it. Mutual covenants may be contained in the same instrument; but each party must seal and deliver his own exactly as if they were contained in several parts of it. Mr. Platt is apprehensive that the contrary has been too long sanctioned by eminent compilers to be now shaken; but it has merely floated in the professional brain without an adjudged ease to support it, or any thing better than the obiter dietum of a very distinguished Chief Justice, who took it as he found it set down in the digests and text-books. On the contrary, in Lock v. Wright, Stra. 571, it was held that mutual covenants cannot arise out of a deed-poll, because it is not the act of both parties, and the grantee on it. is liable in an action of debt. Forms of action are founded in technical reason, and it is greatly important that they be kept to the line of technical congruity, else we should fall into a distressing state of uncertainty and confusion. A proof of this is the act of 1806, which, though it did well in abolishing the fiction <|n ejectment, introduced much unnecessary litigation as to forms of proceeding in the actions of debt and assumpsit, which are not entirely settled at the end of forty years. But a more plausible argument is, that as the body of the instrument is in the form of an indenture, and contains a recital that it was interchangeably signed and sealed, the seal of the one should be taken for the seal of the other. So, indeed, it would, if the other had signed, or his adoption of the seal were proved by evidence aliunde ; for instance, by the oath of one who saw it. Subscribing is intrinsic evidence to authenticate the seal, the signature attached to it being the party’s particular mark to individuate it as the one affixed by him; but as signing is not a part of the execution, but only evidence of it, it follows not that the sealing may not be proved by evidence extrinsic to the deed. What evidence of adoption have we here ? Nothing but the recital that the parties had signed and sealed, which was not allowed in Taylor v. Glaser, 2 Serg. & Rawle, 502, to supply the place of an actual seal. In that case, however, there was no actual seal,' and here there is one; but whatever inference of adoption might else be drawn from the recital, is overborne by the fact that the grantor wrote his name to authenticate his seal, and the grantee did not. Now, though I do not entirely concur in what was said in McDill v. McDill, 1 Dall. 63, and in Long 333 v. Ramsay, 1 Serg. & Rawle, 72, that the signing of a deed is now the material part of the execution, I admit it is the most powerful evidence of the joint or separate ensealing of it; and that had the grantee in this instance also subscribed his name, he would have been bound as a covenantor. In the absence of that and every other direct proof, we are bound to say he executed no deed on which an action of covenant can be maintained against him. Judgment reversed.