The common law made the technical rule that though a deed poll might create a covenantee who was not a party to the instrument (for indeed a deed poll would otherwise be an impossibility) yet in an indenture no one not a party to the deed could sue upon it as covenantee.66 Therefore where an agent purporting to act on behalf of his principal entered into an indenture with another person, but executed the indenture in such a way as to bind himself and not his principal, the principal could not sue on the indenture though the covenant was in terms made to the principal;67 and for the same reason an instrument executed by A and B purporting to release an obligation due to A by C was ineffectual.68 It may perhaps be questioned whether this rule of the common law would be generally followed to-day, even where seals still have their common-law effect. If a plaintiff is expressed as a covenantee of a promise sealed by the defendant, it may be thought that the real essentials of a covenant exist. The case is not like that where a plaintiff seeks to sue on a covenant made to another because he is a beneficiary of the covenant. In such a case the covenant does not run to the plaintiff, and clearly the common law would deny recovery.69 A further requisite in regard to the covenantee is that he must be fixed at the time the covenant is delivered, for it must take effect then if at all. There must, then be a complete promise which requires both a promisor and a promisee. The parties need not be named, it is enough if they are described in the instrument so that at the time of its delivery they are capable of identification. But there cannot be a floating covenant corresponding to a public or general offer of a simple contract. A promise under seal to such a person as shall in the future fulfil a given description is therefore not a valid covenant when delivered, and does not later become so when the promisee becomes identified.70
65aStaines v. Morris, 1 V. & B. 8; Willcioa v. Fry, 1 Meriv. 244; Georgia Southern Ry. v. Reeves, 64 Ga. 492; Midland Ry. Co. v. Fisher, 125 Ind. 19, 24 N. E. 766, 21 Am. St. Rep. 189; Bin-bank v. Fillabury, 48 N. H. 475, 97 Am. Dec. 633. See also Harrison v. Vreeland, 38 N. J. L. 366; Sparkman v. Gove, 44 N. J. L. 262; Bowen v. Beck, 94 N. Y. 86,46 Am. Rep. 124.
66 Scudamore v. Vandenstene, 2 Coke's Inst. 673; Gilby v. Copley, 3 Lev. 138; Storer v. Gordon, 3M.&S.
308; Berkeley v. Hardy, 5 N. & C. 355; O'Grady v. Howe & Rogers Co., 166 N. Y. App. Div. 652, 152 N. Y. S. 79. Covenants running with land to which they related are an exception to the rule.
68Storer v. Gordon, 3 M. & S. 308.
69See infra. Sec. 401.
Sec. 316. An agent cannot bind his principal by deed unless he has authority under seal. Unless an agent acts in the presence and under the direction of his principal, or unless the principal is a corporation, the agent cannot effectively make a sealed contract on behalf of his principal without authority under seal or subsequent ratification under seal. The authorities upon these propositions and some consequences involved in them are subsequently considered.71