This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
2 Aveline v. Whisson, 4 Man. & G. 801. 3 Cherry v. Hemming, 4 Exch. 631.
§ 10. Assuming, however, that the statute does require a signature to a conveyance of an interest in land, the important question arises, what is to be deemed a signature under its provisions; whether it allows such a signature as would have been good at common law, as, for instance, by having the grantor's name affixed to the instrument in his presence and by his direction. This point has come before the Court of Appeals of South Carolina and received a very able discussion. The case was of a marriage settlement embracing real property, and one question was, whether the intended wife had validly executed the instrument, she not having signed it herself, but having requested a witness to sign her name for her, which was accordingly done in her presence. The court, which consisted of four chancellors, being equally divided on the question, it was not determined, and the decision passed upon another ground; but the opinion of Chancellor Johnston, in delivering judgment, presents very strongly the argument against the validity of such an execution. He said: "The statute requires the party to sign himself, or if he signs by an agent, the agent must be authorized in writing. When another person subscribes for him, that person is his agent, whether the act be done in his presence or out of it. The only difference between an agency exercised in the presence and one executed in the absence of the principal is in the evidence of the agent's authority. The presence and superintendence of the principal are proof of his assent; other proof may be necessary when he is absent. But in either case it is the principal who acts, and not the agent. If the agency be made out by proof of authority, then the law comes in and declares that the act done by him shall be attributed to and shall bind the principal. The common law, which admitted parol proof of authority, would no doubt have declared that an act done in the presence of the latter by his procurement was binding on him, and in this sense that it was his own act. But the statute in this section has emphatically declared that if an agent sign, his authority shall not be made out by parol, but must in all cases be proved by writing. The act, if otherwise evidenced, shall not be the act of the principal, nor bind him. This enactment, it is therefore contended, has materially altered the common law in this, that a subscription by agency, wherever executed, if the authority to make it depend upon parol, is not the subscription of the party, nor conclusive on him." The learned Chancellor supports this view by comparing the provisions of the statute in regard to the execution of conveyances with those in regard to the execution of wills; the latter expressly permitting the alternative of signature by the testator, or "by some other person in his presence and by his express direction;" and argues that the omission of this alternative in the former case shows the intention of the legislature that the alternative act should not, in cases of conveyances, be permitted. In cases of wills, the probable physical incapacity of the testator at the time affords a reason for allowing him to sign by the hand of another; and in maintaining that no exception can be engrafted upon the statute on consideration of expediency, where the statute itself is clear against such exception, the Chancellor seems to admit that, by his construction, all persons laboring under such physical incapacity to sign a conveyance or letter of attorney to convey are disqualified from making a transfer of land.1
1 See the reasoning of Patteson, J., in Cooch v. Goodman, quoted supra. The English law is also stated to be in conformity with the position presented in the text, in Gresley, Eq. Evid. p. 121; and 1 Pres. Abs. Tit. 294.
2 Parks v. Hazlerigg, 7 Blackf. (Ind.) 536; 1 Pars. Cont. 96, note, in which some valuable suggestions may be found as to the formalities required for conveyances by the statute. By the Revised Statutes of Indiana, 1843, p. 416, conveyances of lands or of any estate or interest therein are expressly required to be subscribed and sealed. See Appendix.
§ 11. In the case of Gardner v. Gardner, the Supreme Court of Massachusetts refused so to construe the statute. The grantor assented, by a nod, to her daughter's signing for her, whereupon the daughter signed thus: "Polly Gwinn by Mary G. Gardner," and the court held that it was not to be considered as an execution by an attorney, which would have required a power written and sealed, but as an execution by the grantor herself. Chief Justice Shaw, delivering the opinion of the court, said: "The name, being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers, and she merely uses the hand of another, through incapacity or weakness, instead of her own, to do the physical act of making a written sign. To hold otherwise would be to decide that a person having a full mind and clear capacity, but through physical inability incapable of making a mark, could never make a conveyance or execute a deed; for the same incapacity to sign and seal the principal deed would prevent him from executing a letter of attorney under seal." 2 The report, however, does not show any physical inability on the part of the grantor to sign for herself, but a plain case of execution of a deed of land by the hand of another, similar to that which the court in South Carolina found itself unable to sustain. The reasoning in Gardner v. Gardner is certainly very satisfactory as to cases where there exists such physical inability; but the report shows no reasoning upon the question which appears to have been actually presented on the facts. None of the authorities quoted are decisions upon the statute. Ball v. Dunsterville3 was upon a bill of sale, a partnership transaction, and one partner signed for both. The remark in Greenleaf on Evidence,1 that "if the signature of an obligor be made by a stranger, in his presence, and at his request, it is a sufficient signing," is based upon the decision in Rex v. Longnor.2 That was a case upon an indenture of apprenticeship, where the names of the apprentice and his father were signed by another person, in their presence, and at their request. The instrument was not read over to the father, but the court held, upon the authority of Thorough-good's case,3 that it was not for that reason invalid. The son subsequently had it read to him and approved it, and carried it to his master and entered as apprentice under it. It was decided that the instrument was validly executed by both, but the question whether the signature by the hand of a third person was sufficient was not raised. The decision went entirely upon Thoroughgood's case, in which the deed was actually sealed and delivered by the grantor, and which was before the Statute of Frauds was enacted.