This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
58. Ante, Sec.Sec. 156-158.
59. Ante, Sec. 160.
60. Post, Sec. 463.
61. Post, Sec. 463, note 18.
A conveyance to a corporation not yet formed has heen regarded as invalid for lack of an existent and ascertained grantee.62 But, it is submitted, such a conveyance might, apart from the Rule against Perpetuities, be supported as creating an executory interest, to become vested upon the formation of the corporation. In so far, however, as the conveyance might be intended to operate in favor of a corporation to be formed at a future time, however remote, it would be invalid under the Rule against Perpetuities.
A conveyance to the inhabitants of a certain district or municipal division has been regarded as invalid, on the ground that there is a lack of reasonable certainty in the grantee,63 and a like view has been taken of a conveyance to the owners of the building adjoining the land conveyed on the west side thereof.64
- Neme of grantee left blank. At the common law, a deed, that is, an instrument under seal, if de livered with a blank therein as to an essential part, is void, although this blank be afterwards filled by one having parol authority from the maker of the deed so to do; this conclusion being ordinarily based on the theory that an authority to execute and deliver an instrument under seal must itself be under seal.05 Applying the rule referred to, it has been held, in several states, that a conveyance under seal, which is sought to be delivered with the name of the grantee left blank, is invalid, although the blank is afterwards filled up by another person acting under authority from the grantor, if that authority was not under seal.66 In other states, it has been held, without reference to the question of a seal, that an authority subsequently to insert the grantee's name must be in writing.07 In still other states there are decisions to the effect that the name of the grantee, if left blank, may be inserted under an oral authority, or an authority merely inferred from the circumstances of the case,68 these de66. Ingram v. Little, 14 Ga. 173, 58 Am. Dec. 549; Burns v. Lynde, 6 Allen (Mass.) 305; Macurda v. Fuller, 225 Mass. 341, 114 N. E. 366; Davenport v. Sleight, 19 N. C. 381; Rollins v. Ebbs, 137 N. C. 355, 2 Ann. Cas. 327, 49 S. E. 341; Preston v. Hull, 23 Gratt. (Va.) 600.
62. Phelan v. San Francisco, 6 Cal. 531; Harriman v. Southam, 16 Ind. 190; Douthitt v. Stinson. 63 Mo. 268; Utah Optical Co. v. Keith, 18 Utah, 464; Russell v. Topping 5 Mclean, 194, Fed. Cas. 12163.
63. Hunt v. Tolles, 75 Vt. 48,
52 Atl. 1042; Co. Litt. 3a.
64. Schaidt v. Blaul. 66 Md. 141, 6 Atl. 669.
65. Sheppard's Touchstone, 54: Comyn's Dig. "Fait" (A 1); Hib-blewhite v. Mcmorine, 6 Mee & W. 200.
R. P. - 26
67. Adamson v. Hartman, 40 Ark. 58; Upton v. Archer, 41 Cal. 85, 10 Am. Rep. 266; Whitaker v. Miller. 83 111. 381; Mickey v. Barten, 194 111. 446, 62 N. E. 802; Ayres v. Probasco, 14 Kan. 175; Lund v. Thackery, 18 S. D. 113, 99 N. W. 856. See Lind-sley v. Lamb, 34 Mich. 509.
68. Swartz v. Ballou, 47 Iowa, 188, 29 Am. Rep. 470; Hall v. Kary, 133 Iowa 465, 119 Am. St. Rep. 639, 110 N. W. 930; Bank V. Fleming, 63 Kan. 139, 65 Pac. 213; Guthrie v. Field, 85 Kan. 58, 37 L. R. A. (N. S.) 326, 116 Pac. 217 (dictum); Inhabitants of South Berwick v. Huntress, 53 Me. 90; Board of Education of Minneapolis v. Hughes, 118 Minn. 404, 41 L. R. A. (N. S.) 637, 136 N. W. 1095; Field v. Stagg, 52 Mo. 534, 14 Am. Rep. 435; Thuni-mel v. Holden, 149 Mo. 677, 51
S. W. 404; Hemmenway v. Mu-lock, 56 How. Pr. (N. Y.) 38; Cribben v. Deal, 21 Ore 211, 28 Am. St. Rep. 746, 27 Pac. 1046; Threadgill v. Butler, 60 Tex. 599; Clemmons v. Mcgeer, 63 Wash. 446, 115 Pac. 1081; Lafferty v. Lafferty, 42 W. Va. 783, 26 S. E. 262; Schintz v. Mcmanamy, 33 Wis. 299; Friend v. Yahr, 126 Wis. 291 1 L. R. A. (N. S.) 891, 110 Am. St. Rep. 924, 104 N. W. 997
The tendency is to presume authority for this purpose in the person to whom the instrument is handed by the grantor. Creveling v. Banta, 138 Iowa, 47. 115 N. W. 598; Barras v. Barras, 191 Mich. 473, 158 N. W. 192; Board of Education v. Hughes, 118 Minn. 404, 41 L. R. A. (N. S.) 637, 136 N. W. 1095; Montgomery v. Dresher, 90 Neb. 632, 38 L. R. A. (N. S.) 423, 134 N. W. 251; Lamar v. Simpson, 1 Rich. Eq. (S. C.) 71, 42 Am. Dec. 345; Clemmons v. Mcgeer, 63 Wash. 446, 115 Pac. 1081; Friend v. Yahr 126 Wis. 291, 104 N. W. 997, 1 L. R. A. (N. S.) 891, 110 Am. St. Rep. 924, 104 N. W. 997.
434] Transfer Inter Vivos. 1599 cisions ordinarily referring to the common law requirement of an authority under seal as technical and unreasonable. These decisions do not however meet the difficulty presented by the statutes in force in a number of states requiring a conveyance to be signed by the grantor or by an agent "authorized in writing.'; In the presence of such a statute it is difficult to understand how such an essential part of the conveyance as the designation of the grantee can be the act of an agent without written authority. And especially is this the case when the oral authority is one to insert, not the particular name which was inserted, but any name which it might thereafter become desirable to insert. Nor do these decisions appear to meet the difficulty, hereafter referred to,69 arising from the requirement of delivery.
In case one to whom the instrument is entrusted, with authority to insert the name of the grantee, inserts such name and then hands the completed instrument to the grantee named, the question arises, when, if ever, is the instrument to be regarded as having been delivered. Was delivery effected by the action of the grantor in handing the instrument to the agent, or was it effected by the action of the agent in handling or with the view that the delivery is to be regarded as made by the agent on behalf of the grantor. The conception of a conveyance becoming operative by reason of a delivery made by the grantee as agent of the grantor is an almost impossible one. Furthermore, if the one who is given authority to fill the blank is also the grantor's agent for the purpose of making delivery of the instrument when completed, he should, it is submitted, have formal written authority for this purpose, a power of attorney, as it is ordinarily termed, the delivery being a part of the execution of the instrument.73