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 Jackson v. Titus, 2 Johns. (N. Y.) 430.
2 Frost v. Deering, 21 Me. 156; Mut. Benefit Ins. Co. v. Brown, 30 N. J. Eq. 193; Allen v. Withrow, 110 U. S. 119. See Jansen v. McCahill, 22 Cal. 563; Videau v. Griffin, 12 Cal. 389; Burns v. Lynde, 6 Allen (Mass.) 309; Pierce v. Hakes, 23 Pa. St. 242.
3 Burns v. Lynde, 6 Allen, 305. See also Basford v. Pearson, 9 Allen, 387; Skinner v. Brigham, 126 Mass. 132, and Upton v. Archer, 41 Cal. 85.
1 Combes's Case, 9 Co. 75 a; Bac. Abr. Leases, I. § 10; 1 Pres. Abs. Tit. 293; Elwell v. Shaw, 16 Mass. 42. In Maine, it is sufficient if the deed be executed in the name of the agent for the principal. Compare Curtis v. Blair, 26 Miss. 309.
2 Wilks r. Back, 2 East, 142, 145; Jones v. Carter, 4 Hen. & M. (Va.) 184; Mussey v. Scott, 7 Cush. (Mass.) 215. See Echols v. Cheney, 28 Cal. 157; Morrison v. Bowman, 29 Cal. 352; Bogart v. De Bussy, 6 Johns. (N. Y.) 94; Locke v. Alexander, 1 Hawks (N. C.) 412.
3 Devinney v. Reynolds, 1 Watts & S. (Pa.) 332. 4 Wilks v. Back, 2 East, 142, 145.
1 Wood v. Goodridge, 6 Cush. 117. The learned judge thus states the argument from inconvenience: "If the agent might execute instruments in this mode, the principal; if he found his name signed to an instrument, would have no means of knowing by whom it had been signed, or whether he was bound or not bound by such signature; and other persons might be greatly deceived and defrauded, by relying upon such signature as the personal act and signature of the principal, when the event might prove that it was put there by an agent, who had mistaken his authority and consequently that the principal was not bound. When it should be discovered that the name of the principal was not written by him, as it purports to be, it might be wholly impossible to prove the execution by attorney, as there would be nothing on the note to indicate such an execution."
2 Townsend v. Corning, 23 Wend. (N. Y.) 435; Martin v. Flowers, 8 Leigh (Va.), 158. Contra, Tenant v. Blacker, 27 Ga. 418 (statutory); Rogers v. Bracken, 15 Tex. 564. In Rogers v. Frost, 14 Tex. 267, such an execution was sustained in equity, as being a defective execution of a valid power.
3 Ward v. Bartholomew, 6 Pick. (Mass.) 409; Cofran v. Cockran, 5 N. H. 458; Thompson v. Carr, 5 N. H. 510.
§ 14. As to the agent who may sign for the grantor under the three first sections, nothing is required by the statute except that he be "thereunto lawfully authorized in writing."5 No personal qualifications therefore appear to be demanded for the agent other than those which are demanded at common law in other cases of agency. At common law it was not necessary to appoint, in writing, an attorney to make a transfer of an interest in land not under seal though in writing.6 This difference results from the distinction, heretofore alluded to, between conveyances by parol and conveyances by deed. The common law put all parol transfers of land, whether written or oral, upon the sam not requiring any but a verbal authority to make t was to this point that the clause we are now considen directed. As the statute declared that such convey should thenceforth be made in writing only, so it dec ed that, to make such writing, the attorney must thenceforth be authorized by writing.1 Whether it is necessary that the authority be signed, if it be sealed, is a question quite identical with that which has been heretofore considered upon the subject of execution by the principal instead of an attorney. If, as was there suggested, it is a sufficient execution by the principal to seal the instrument without signing, it will of course be a sufficient execution of the authority to the agent. The general rule, however applicable to this subject, is clear, that, whatever be the act required to be done, the power to do it must be conferred by an instrument of as solemn a nature as the act to be performed.2 If a deed is to be executed, the power to do it must be sealed; this is a principle of common law.
1 4 Greenl. Cru. Dig. 48; Co. Litt. 48, c. 52 b. See Plummer v. Russell, 2 Bibb (Ky.) 174.
2 Cooch v. Goodman, 2 Q. B. 580; Jackson v. Walsh, 3 Johns. (N. Y.) 226.
3 Brinley v. Mann, 2 Cush. (Mass.) 337; Hutchins v. Byrnes, 9 Gray (Mass.) 367; Haven v. Adams, 4 Allen (Mass.) 80.
4 Ang. & A. Corp. § 223; Sherman p. Fitch, 98 Mass. 59. Compare Abbey r. Chase, 6 Cush. (Mass.) 54; Fullamr. West Brookfield, 9 Allen (Mass.) 1.
6 In Tennessee, the attorney need not be authorized in writing. Johnson v. Somers, 1 Humph. 268. Nor, it seems, in Massachusetts; see ante, § 12. Nor, semble, in New Jersey; Doughaday v. Crowell, 11 N. J. Eq. 201. See Lobdell v. Mason, 15 So. Rep. (Miss.) 44.
6 1 Story Ag. § 50.
§ 14 a. And it has generally been held that if an agent, in the name of his principal, but without his authority, execute an instrument requiring a seal, the principal's subsequent ratification must be under seal.3 In Massachusetts, however, there are some decisions indicating a relaxation of this rule of the common law. In the case of Mclntyre v. Park,4 the court says: "The defendant contends that a sealed instrument, executed without previous authority, can be ratified only by an instrument under seal. However this may be elsewhere, by the law of Massachusetts such instrument may be ratified by parol. . . . The cases in which this doctrine has been adjudged were those in which one partner, without the previous authority of his copartners, executed a deed in the name of the firm. But we do not perceive any reason for confining the doctrine to that class of cases." This statement was not necessary to the decision of the case, the instrument in question (as appears from the report) being a contract for the sale of land, and therefore not necessarily under seal.1 The statement is quoted and affirmed in a late case; but here again it was not necessary to the decision, the instrument being a lease for five years, which one of two partners had signed and sealed, but under which both had entered.2