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.
1 Wallace v. McCollough, 1 Rich. Eq. 426; and see Rockford, etc, R. R. Co. v. Shunick, 65 111. 223.
2 Gardner v. Gardner, 5 Cush. 483. See Bigler v. Baker, 58 N. W. Rep. (Neb.) 1026.
3 Ball v. Dunsterville, 4 T. R. 313.
§ 12. In Irvin v. Thompson, the Supreme Court of Kentucky adopted the same course of reasoning as that in Gardner v. Gardner. A letter authorizing the sale of lands was subscribed with the name of the party, by another person, at her request, and in her presence, and a contract for the sale of the land, made by the attorney under that letter, was now sought to be enforced. The court held that the power was sufficient though not actually signed by the principal, because, "to construe the statute to require an authority to make a contract for the sale of land to be in writing and signed by the party giving such authority, would in effect prevent any person who is unable to write from making a binding contract. Such an effect cannot be presumed to have been within the intent of the legislature to produce by the statute."4 Upon the point actually before the court in this case, however, no question could arise, as contracts for the sale of lands are provided for by the fourth section of the statute, which does not require that the authority to make them should be in writing. It seems, therefore, that there is no decision directly supporting Gardner v. Gardner, if the point there decided be that a deed of land is well signed if the signature of the grantor be affixed thereto by a third party, in his presence, and at his request, notwithstanding the Statute of Frauds. But as the Revised Statutes of Massachusetts 1 did not in terms require that the attorney for signing shall be appointed by writing, and as the common law does not require a written authority to make a transfer by parol (whether verbal or written), the decision in question may be supported under these limitations. In those States where the provision of the statute requiring the attorney to be appointed by writing is re-enacted, the question will undoubtedly present considerable difficulty. In Michigan it is held that an agreement for the sale of land signed by another with the name of the seller, in his presence, and at his request, is, in legal contemplation, signed by the seller himself.2 It has also been decided repeatedly that after legal acknowledgment of the signature to a deed, as that of the grantor, he will not be heard to deny the fact of having signed it.3
1 Vol. II. § 295.
2 Rex v. Longnor, 4 Barn. & Ad. 647. 3 Thoroughgood's case, 2 Coke Rep. 5. 4 Irvin v. Thompson, 4 Bibb, 295.
§ 12 a. To the suggestion that a strict adherence to the statute will prevent a person laboring under physical incapacity from making a conveyance, it may be answered that a case can hardly be supposed where the party would not be able to make his mark, a mode of execution well known to be sufficient. That the opinion of Chancellor Kent, on the other hand, is opposed to any relaxation of the statute in this respect, may be inferred from his language in the case of Jackson v. Titus, where he says: "The affixing of the hand and seal to a piece of blank paper never can be considered an assignment by deed or note in writing, within the requisitions of the Statute of Frauds. And to allow the subsequent filling up of the deed by a third person to have relation back to the time of the sealing and delivery of the blank paper in consequence of some parol agreement of the parties, is to open a door to fraud and perjury, and to defeat the wise and salutary provisions of the statute."l
1 Rev. Stats, c. 59, § 29.
2 Eggleston v. Wagner, 46 Mich. 610. See Dickinson v. Wright, 56 Mich. 42.
3 Kerr v. Russell, 69 111. 666; Tunison v. Chamberlin, 88 111. 378; Johnson v. Van Velsor, 43 Mich. 208.
§ 12 b. Upon the whole, however, the drift of judicial opinion is so strong in the direction given to the law by Gardner v. Gardner, that it must now apparently be considered settled that a conveyance of an estate in land is well signed, as the conveyance of the principal under the statute, if the grantor's name be affixed by another in the grantor's presence, and by his oral direction, whether there be any physical incapacity on his part or not. The cases are to be supported, it seems, only on the ground that such an execution is to be regarded not at all as an execution by attorney (for which the statute in terms requires a written authority), but as an execution by the principal in a manner sufficient at common law and not controlled by the language of the statute.2 Where the question arose of a deed which, when signed and sealed, contained only the printed form, and of which the blanks for the names of the parties, the description of the land, and a certain agreement of release, were afterwards inserted, in the absence of the grantor, by his agent previously orally authorized to do so, the Supreme Court of Massachusetts held the deed to be void.3 The court say: "If such an act can be done under a parol agreement, in the absence of the grantor, its effect must be to overthrow the doctrine that an authority to make a deed must be given by deed." They refer to Gardner v. Gardner, and recognize it as correctly deciding "that a deed signed for the grantor in his presence and at his request is good without a power of attorney," and add that "it states accurately the distinction between acts done in the presence and by the direction of the principal, and acts done in his absence; the former are regarded as done by the principal himself, and the instrument need not purport to be executed by attorney, while the latter must be done under a power and must purport to be so done." § 13. When the deed is executed by an attorney for that purpose, he should sign the name of the grantor.1 The best form of execution is writing the name of the principal, adding the words, "by his attorney," and then signing the name of the attorney. But an execution may be valid, though not in this form, provided it clearly shows the signing to be the act of the principal, done and executed in his name, by the attorney. Thus, where the attorney's name precedes that of the principal, the execution has been held sufficient.2 The attorney may also execute by signing the name of his principal alone.3 In Wilks v. Back,4 it was said by Lawrence, J., that if an attorney should seal and deliver a deed in the name of the principal, that would be enough, without stating that he had so done; and it does not appear to have been ever decided that the signing of the grantor's name by the attorney, without adding words to show that it was done by attorney, was not a sufficient signing. The question was presented in Massachusetts, where the conveyancer wrote at the bottom of the deed the words "Benjamin Goodridge, by his attorney," and the attorney, instead of writing his own name, wrote the name of the grantor, "Benjamin Goodridge." The court decided the case upon another ground, but in the opinion by Fletcher, J., it is said that they were inclined to think it was not a valid execution. It is strongly urged that it is nowhere stated or suggested in any work of authority that such a mode of execution is proper and legal, and the inconvenience of permitting it is forcibly explained. The doctrine of Lawrence, J., above quoted, is noticed, but not much regarded.1 Where the attorney signs his own name only, the deed will not be sufficiently executed.2 There is said to be an exception to this rule, however, in the case where the deed conveys land belonging to a town or state, which has authorized the attorney by vote or resolve.3 Wherever a conveyance under seal is good without any signature, as has been shown to be the doctrine of the more recent English authorities, it would seem unreasonable to hold that a defective signature invalidates the deed, and that it does not, appears to be the opinion of an eminent English writer.1 In the execution of a deed by a corporation, the affixing of the corporate seal is the essential thing, and the signature is of value only as evidence that the sealing is authorized.2 Where therefore an instrument, necessarily under seal, is executed on behalf of a corporation, it will be bound thereby if the seal appears, or can be shown to be, the corporate seal, or to have been affixed as such.3 But when a corporation executes an instrument which does not require a seal, the manner of its execution will be subject to the rules governing simple contracts; and this, though a seal should in fact be affixed.4