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 In a case in North Carolina, Shamburger v. Kennedy, 1 Dev. 1, it was said that an authority by parol would not be sufficient, because titles to land must be evidenced by written conveyances. This is manifestly an incorrect view, for, under the fourth section of the statute, certain contracts are required to be evidenced by writing, but the agent to make them may be appointed verbally. The written letter of attorney, expressly required by the first section, appears to be a mark of that superior caution always exercised by legislatures in regard to whatever concerns the title to land.
2 1 Story Ag. § 50; 2 Kent Com. 614. 3 Story Ag. 242.
4 Mclntyre v. Park, 11 Gray, 102.
§ 14 b. The decision in another case in Massachusetts would seem to involve a similar limitation of the general doctrine. The action was a writ of entry to recover land conveyed by the deed of the owner, a married woman. To this instrument she had affixed the signature of her husband in his absence, and without a sealed authority, or perhaps with no authority at all. The defendant denied the validity of this instrument, but the court held that a subsequent acknowledgment by the husband of the deed, bearing his signature so previously affixed by his wife in his absence, was a recognition and adoption of the signature as his own; and the conveyance was held valid. The decision was clearly put on the ground of subsequent ratification, but no notice seems to have been taken of the fact that this was by parol.3
1 Swisshelm v. Swissvale Laundry Co., 95 Pa. St. 367.
2 Holbrook v. Chamberlin, 116 Mass. 155. For other decisions in Massachusetts, bearing on this point, see Warring v. Williams, 8 Pick. 326; Cady v. Shepherd, 11 Pick. 400; Tapley v. Butterfield, 1 Met. 515; Swan v. Stedman, 4 Met. 548; Russell v. Annable, 109 Mass. 72.
3 Bartlett v. Drake, 100 Mass. 174. Compare Burns v. Lynde, 6 Allen (Mass.) 305; Basford v. Pearson, 9 Allen (Mass.) 387.
§ 15. The rule requiring a written power to the attorney from whom a conveyance of an estate in land is to proceed is equally applicable, although the power is to be exercised through judicial forms. Thus it was held in Pennsylvania that a verbal submission to arbitrators of a question of partition did not give them authority to make that partition.1
§ 16. A doctrine recently applied in Massachusetts to cases of transfers of land within the Statute of Frauds, that if the grantor request another to affix his name to the deed, and it is so done in the grantor's presence, this is an original execution by the grantor, and not a verbal appointment of an attorney, has been heretofore considered under the question, what constitutes a valid execution by the principal.2
§ 17. A subsequent ratification in due form of an attorney's act always cures any defect in his original appointment; and for such purpose, in cases affected by this branch of the Statute of Frauds, the ratification must of course be by writing.3 In South Carolina, where a sale and conveyance of land were made by a sheriff under a defective order of court for foreclosure of a mortgage, it was held that it operated as an assignment of the mortgagee's legal title, that the sheriff was the agent of the mortgagee, and that the answer of the mortgagee, admitting the facts, was a sufficient compliance with the Statute of Frauds.4
1 Gratz v. Gratz, 4 Rawle, 411.
2 Gardner v. Gardner, 5 Cush. 483, cited ante, § 11.
3 McDowell v. Simpson, 3 Watts (Pa.) 129; Parrish v. Koons, 1 Pars. (Pa.) Eq. Cas. 79. But see Bartlett v. Drake, 100 Mass. 174. The doings of an agent whose appointment is not valid for want of writing cannot estop his principal unless actually adopted by him. Holland v. Hoyt, 14 Mich. 238; Judd v. Arnold, 31 Minn. 430; Henderson v. Beard, 51 Ark. 483; McClintock v. South Penn. Oil Co., 146 Pa. St. 144.
4 Stoney v. Shultz, 1 Hill Eq. 499. See post, § 515.