Story Case

Harold Capper, living in Chicago, wrote a letter to Fred Whiffen in Dayton, Ohio, authorizing him to sell an acre of land belonging to Capper and situated in Dayton. Whiffen thereupon found a buyer and executed a deed to the buyer, signing Capper's name thereto, and his own as agent. Later Capper refused to have his tenant evacuate the land, and the buyer from Whiffen brought action to compel Capper to give up possession. Capper put in a defense to the effect that the letter to Whiffen merely gave the latter an authority to make a contract for selling the land, and not an authority to make a deed for it, because a deed must be under seal, and therefore the authority to make a deed must be under seal. Is this a correct defense?

Ruling Court Case. Ingram Vs. Little, Volume 58 American Decisions, Page 549

In this case it appears that the owner of certain land made out a deed to the same, leaving blank the person to whom it was to be conveyed, and the amount of the purchase price.

In this condition it was given to Anderson, with parol direction to find a purchaser and fill in the blanks with the name of the purchaser, and the amount which might be agreed upon. Finding a purchaser, the agent filled in the blanks mentioned above, and delivered it to the purchaser as the deed of the owner.

In an action of ejectment the validity of this deed was called into question. Upon this point the Court held that it was not an operative deed.

The Court said in part, Mr. Justice Nisbet delivering the opinion: "The deed in this case, before its completion and delivery, was inoperative, because made to no person. We say it could not become a valid deed by filling in the blanks the name of Little as purchaser, by Anderson, in the absence of the owner, because Anderson had no authority under seal to act. The deed was void."

Ruling Law. Story Case Answer

At common law it is a well known rule that authority to execute a sealed instrument by an agent had to be conferred by an instrument under seal. The rule has always been regarded as technical. Accordingly, many states have abolished the distinction between sealed and unsealed instruments, thus doing away with the rule just referred to. So unless changed by statute, the agent's authority to make a deed or conveyance of land, must be by deed under seal. But an agent need not have sealed authority to make a contract for the sale of land, because a contract for the sale of land need not be sealed.

Note: "We learned under the previous title the Statute of Frauds in most states requires a contract for the sale of land to be in writing. Therefore an agency to so contract must be in writing to be enforc-ible in the courts. A conveyance or deed must be under seal, and therefore authority to make a deed must be under seal.

In the Story Case given above, many courts will say that since Whiffen had the authority to make a contract to sell the land, although not the authority to convey it himself, the deed which he made will be considered as a contract to sell and hence the principal will be compelled to execute a deed himself in specific performance of that contract. Summary:

(1) The authority given to an agent usually need not be in writing.

(2) The authority to execute a written contract usually need not be in writing.

(3) The authority to execute a contract required to be in writing by the Statute of Frauds must be in writing. This includes :

(a) An agency contract whereby the agent agrees to work over a period extending more than a year from the day of making the contract.

(b) All contracts having reference to the sale of land. (4) Authority to convey land - make a deed - must be under seal.