State ex rel. Gilkeson v. Humbird

Robinson, J., delivered the opinion of the Court. This is- a suit upon the administration bond of Richard M. Sprigg. In the body of the bond, it purports to be signed and sealed by Richard M. Sprigg, Alfred Spates, J. H. Long and John Humbird. It is signed by all these parties, and there is a seal opposite to each of the signatures of Richard M. Sprigg, Alfred Spates and J. H. Long, but there is no seal opposite to or in any manner attached to the signature of the appellee, Humbird. And the question is whether the plea of non est factum by him is a good plea ? A seal is essential to a deed or specialty, although it is not necessary that every one signing a deed should have a separate seal, nor is it necessary there should be as many seals as signatures. One may authorize another to sign and seal a deed in his behalf, or he may sign it and adopt the seal of one of the parties. In order, therefore, to support this action, it must appear that the bond in question, was sealed by the [330] appellee, Humbird, or by some one acting in bis behalf and by his authority, or that he adopted the seal of one of the other contracting parties. Neither the words “ signed and sealed with our seals,” in the body of the bond, nor the words “ signed, sealed and delivered in presence of,” just above the signatures of the attesting witnesses, are sufficient to constitute the instrument, the deed or specialty of one who does not in fact seal the instrument. This was expressly decided in Stabler vs. Cowman, 7 G. & J., 284. Ordinarily each party affixes a seal opposite to his signature, and in the absence of proof to the contrary, the instrument will be held to be the deed of the parties only, to the signatures of whom seals are attached, or in some manner connected. Now in this case, there are seals opposite to the signatures of all the contracting parties, except that of the appellee, Humbird; there is no seal opposite to or in any manner attached to his signature, nor is there any evidence to show that at the time of signing the bond, he adopted any one of the seals of the other parties. It is simply a case, in which one of the obligors, through inadvertence or mistalce failed to affix a seal to his signature, and without which the instrument cannot he considered his deed. It appears, however, that some time after the delivery of the bond in question, Richard M. Sprigg, the administrator, conveyed to the appellees, Humbird and Alfred Spates, certain personal property to indemnify them against loss on account of the same, and it is argued that this conveyance is evidence from which a jury may infer that the appellee, Humbird, adopted the instrument as his deed. The question here, however, is whether the bond sued on is, in fact, the bond of Humbird? He intended, no doubt, to affix a seal to his signature, and the Sprigg con [331] veyance may be evidence to show that he was under the impression that such seal had been affixed; but neither his intention, nor impression, nor acts by him under that impression, could make an instrument a deed, when in point of fact it was not a deed. (Decided 1st July, 1880.) The bond upon its face shows there is no seal attached to his signature, and no one could reasonably infer from the fact that the principal obligor subsequently conveyed property to the appellee by way of indemnity, that he at the time of signing the bond, intended to adopt as his own the seal or seals of other contracting parties. The case of Ball vs. Dunsterville, et al., 4 T. R., 313, and Perkins on Conveyancing, sec. 137, were fully considered by the Court in Stabler vs. Cowman, and the decision in that case is, we think, conclusive as to the question in this appeal. We are dealing with a suit on a bond in a Court of law, and the question is whether the bond is sealed by the appellee Humbird ? If it is not, the bond is not his deed, and the plea of non est factum is a good plea. What may be the remedy of the plaintiff in a Court of equity is a question not now before us. For these reasons the judgment below must be affirmed. Judgment affirmed.