Brinley v. Mann

Metcalf, J. The demanded premises were formerly the property of the New England Silk Company, a body corporate, and the demandants claim title thereto under levies of two executions against that company. We see no valid objection to either of those levies. The delay in completing the levy of the first execution was warranted by the Rev. Sts. c. 97. The appraisement of the undivided fractional part of the estate, which was set off on the second execution, was all that the law required of the appraisers. The objections to these levies were therefore rightly overruled by the judge at the trial, and he rightly instructed the jury, that the demand-ants had a prima fade title to the premises demanded in this suit. The tenant also claims title under the Silk Company, through two deeds made to James B. Colt before the demand-ants levied upon or attached the demanded premises, and a deed from Colt to Humphrey, who was the tenant’s immediate grantor. On examining the deeds to Colt, we are of opinion that they conveyed no title to him. It is a rule of [340] conveyancing, long established, that deeds, which are executed by an attorney or agent, must be executed in the name of the constituent or principal. In Combes’s Case, 9 Co. 76 b, it was resolved “ that when any has authority, as attorney, to do any act, he ought to do it in his name who gives the authority ; for he appoints the attorney to be in his place, and to represent his person ; and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority.” And in Fowler v. Shearer, 7 Mass. 19, Parsons, C. J., says, “ It is not enough for the attorney, in the form of the conveyance, to declare that he does it as attorney; for he being in the place of the principal, it must be the act and deed of the principal, done and executed by the attorney in his name.” This doctrine,' which was applied in Elwell v. Shaw, 16 Mass. 42, and in other cases cited by the demandants’ counsel, and also in Berkeley v. Hardy, 8 Dowl. & Ryl. 102, must be applied to the deeds now before us. Both of these deeds were executed by C. Colt, jr., in his own name, were sealed with his seal, and were acknowledged by him as his acts and deeds. In one of them, it is true, he declared that he acted in behalf of the company, and as their treasurer; and in the other he declared himself to be their treasurer and to be duly authorized for the purpose of executing it. But this, as we have seen, was “ not enough.” He should have executed the deeds in the name of the company. He should also have affixed to them the seal of the company, and have acknowledged them to be the deeds of the company. 1 Crabb on Real Property, <§>§ 703, 705 ; 4 Kent Com. (3d ed.) 451; Stinchfield v. Little, 1 Greenl. 231; Savings Bank v. Davis, 8 Connect. 191; 3 Stewart on Conveyancing, 189. If the deeds had been rightly executed in other respects, the seal which C. Colt, jr., affixed to each of them (namely, a wafer and a paper, without any stamp or impression) might have been regarded as the seal of the company, according to the decisions in Mill Dam Foundery v. Hovey, 21 Pick. 417, and Reynolds v. Glasgow Academy, 6 Dana, 37. [341] The case of Warner v. Mower, 4 Verm. 385, cited by the tenant’s counsel, was decided upon a statute of Vermont, which authorizes certain corporations to convey real estate by a deed of their president, sealed with his seal. The court, in that case, admitted that “the form of the deed, at common law, would not, probably, be considered good.” As nothing passed to James B. Colt, by the deeds of October, 1844, and June, 1845, he could not convey any title to Humphrey, nor Humphrey to the tenant. We therefore need not examine the other objections to the tenant’s title, which were raised and argued by the counsel for the demandants. Judgment on the verdict.