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 .
The fact that the name of the principal is signed by the agent without any addition to the signature snowing that the signing was by an agent has been held not to affect the validity of the signature.45 It has been suggested that it must appear somewhere upon the face of the instrument that it was executed, not bv the grantor, but by an agent of the grantor,46 but it may be questioned whether this is essential, however desirable.47
A conveyance which fails at law, because its execution is by the agent in his own name, instead of in that of his principal, will be sustained in equity as an agreement to convey, and, as such, will be effective, not only between the parties, but as against subsequent purchasers with notice.48
42. Bassett v. Hawk, 114 Pa. St. 502, 8 Atl. 18.
43. See Northwestern Distilling Co. v. Brant, 69 111. 658, 18 Am. Rep. 631; Shanks v. Lancaster, 5 Gratt. (Va.) 110, 50 Am. Dec. 108; Mcclure v. Herring, 70 Mo. 18, 35 Am. Rep. 404.
44. Smith v. Morse, 9 Wall. (U. S.) 76, 19 L. Ed. 597; Carter v. Chaudron, 21 Ala. 72; Hancock v. Younker, 83 111. 208; Hunter's Adm'rs v. Miller's Adm'rs, 6 B. Mon. (Ky.) 612; Nobleboro v. Clark, 68 Me. 87; Mussey v. Scott, 7 Cush. (Mass.) 215, 54 Am. Dec. 719; Hale v. Woods, 10 N. H. 470,
34 Am. Dec. 176; Cadell v. Allen, 99 N. C. 542, 6 S. E. 399; Donovan v. Welch, 12 N. D. 113; Norris v. Dains - Ohio - 39 N. E. 660, 49 Am. St. Rep 716; Mcdaniels v. Flower Brook Mfg. Co., 22 Vt. 274.
45. Forsyth v. Day, 41 Me. 382; Berkey v. Judd, 22 Minn. 287; Devinney v. Reynolds, 1 Watts & S. (Pa.) 328.
46. Wood v. Goodridge, 6 Cush. (Mass.) 117, 52 Am. Dec. 771.
47. See Forsyth v. Day, 41 Me. 382; Hunter v. Giddings, 96 Mass. 41, 93 Am. Dec. 54.
A married woman has power to transfer her rights in land only in the mode named by statute, and consequently, in the absence of express statutory authority, or a declaration that she may transfer her separate es tate as if she were sole, she cannot execute the conveyance by an agent or attorney, and, if so executed, it will, as against her, be void both at law and in equity.49
The validity of the execution of a conveyance in behalf of a corporation by an officer thereof is to be determined by the same considerations as determine the validity of a conveyance executed by any other agent of the intended grantor. The instrument should properly name the corporation rather than the officer as the grantor, and should be signed with the corporate name and sealed with the corporate seal.50 If, however, the fact that the conveyance is intended to be the deed of the corporation clearly appears from the language of the instrument, the fact that it is signed in the name of the officer does not affect its validity as a conveyance by the corporation.51 And in such case the seal affixed to the signature, though a mere scroll, will be presumed to be the seal of the corporation, for this particular occasion at least.52 And even though the instrument purports to be merely the deed of the officer, the fact that it is signed and sealed in the name of the corporation will, it seems, render it effective as the deed of the corporation.53 If it does not appear from the language of the instrument or from the signature that it is the deed of the corporation, it would not usually be regarded as such, even though the officer is referred to by his official name.54
48. Taylor v. Agricultural & Mechanical Ass'n, 68 Ala. 229; Love v. Sierra Nevada Lake Water & Min. Co., 32 Cal. 639, 91 Am. Dec. 602; Robbins v. Butler, 24 111. 387; Wilkinson v. Getty, 13 Iowa, 157, 81 Am. Dec. 428; Mccaleb v. Pradat, 25 Miss. 257; Kearney v. Vaughan, 50 Mo. 284; Ramage v. Ramage, 27 S. C. 39, 2 S. E. 834. See Stark v. Starr, 94 U. S. 477, 24 L. Ed. 276.
49. Randall v. Kreiger, 23 Wall. (U. S.) 137; Mexia v. Oliver, 148 U. S. 664; Waddell v. Weaver's Adm'rs, 42 Ala. 293; Holland v. Moon, 39 Ark. 120;
Dentzel v. Waldie, 30 Cal. 138; Wilkinson v. Getty, 13 Iowa, 157: Earle's Adm'rs. v. Earle, 20 N. J. L. 347.
50. See Cook, Corporations, Sec. 722.
51. Magill v. Hinsdale, 6 Conn. 464a, 16 Am. Dec. 70; Purinton v. Security etc. Co., 72 Me. 22; Haven v. Adams, 4 Allen (Mass.) 80, distinguishing Brinley v. Mann, 2 Cush. (Mass.) 337; Sherman v. Fitrh, 98 Mass. 59: Tenney v. East Warren Lumber Co., 43 N. H. 343; Mcdaniels v. Flower Brook Mfg. Co., 22 Vt. 274.
- Acknowledgment by agent. An acknowledgment may, in the absence of an express statutory provision to the contrary, be made by the agent or attorney in fact of the grantor. The cases do not indicate what formality of authorization is necessary, but there would seem to be little question that the same formality is necessary to enable an agent to acknowledge as to sign or seal the instrument, that, for instance, a written power of attorney is necessary for the one purpose if it is necessary for either of the others. An authority in terms to "execute" the instrument is no doubt sufficient to authorize its acknowledgment,55 though, strictly speaking, an acknowledgment can not be regarded as a part of the execution, except in jurisdictions where it is necessary in order to transfer the title.
The certificate of acknowledgment should show that the agent of the grantor made the acknowledgment in behalf of his principal, and not in his own behalf,56 but the courts ordinarily appear disposed to disregard
52. See cases cited Cook, Corporations, Sec. 721, 1 Clark & Marshall, Corporations, Sec. 192c.
53. See Northwestern Distilling Co. v. Brant, 69 111. 658, 18 Am. Rep. 631; Shaffer v. Hahn, 111 N. Car. 1, 15 S. E. 1033.
54. Ante, this section, note 42.
55. Robinson v. Mauldin, 11 Ala. 977; Basshor v. Stewart, 54
Md. 376; Bigelow v. Livingston, 28 Minn. 57, 9 N. W. 31; Richmond v. Voorhees, 10 Wash. 316, 38 Pac. 1014.
56. Pfeiffer v. Cressey, 85 111. App. 11; Campbell v. Hough, 73 N. J. Eq. 601, 68 Atl. 759; Peters v. Condron, 2 Serg. & R. (Pa.) 80.
Any such requirement, or to construe the language used with the utmost liberality in this regard.57
The mode of acknowledgment on behalf of a corporation is frequently prescribed by statute. In the absence of any statutory designation of the person who is to make the acknowledgment on behalf of the corporation, it may ordinarily be made by any officer who has authority to affix the corporate seal.58 The certificate should show that the officer taking the acknowledgment was satisfied that the person making the acknowledgment was actually the corporate officer which he purported to be,59 and that he acknowledged the instrument as the act and deed of the corporation.60 But a recital that he acknowledged it as his own act and deed has usually been regarded as sufficient, it being inferrable from the context and the instrument itself that the acknowledgment was in behalf of the corporation.61
57. Robinson v. Mauldin, 11 Ala. 977; Talbert v. Stewart, 39 Cal. 602; Sowden v. Craig, 26 Iowa, 156, 96 Am. Dec. 125; Munger v. Baldridge, 41 Kan. 236, 13 Am. St. Rep. 273; Bige-low v. Livingston, 28 Minn. 57, 9 N. W. 31; Mcadow v. Black, 6 Mont. 601; Moses v. Dibrell, 2 Tex. Civ. App. 457, 21 S. W. 414; Ferguson v. Ricketts, - (Tex. Civ. App.) - 57 S. W. 19; Richmond v. Voorhees, 10 Wash. 316;
58. See Gray v. Waldron, 101 Mich. 612, 60 N. W. 288; Morris v. Keil, 20 Minn. 531; Bowers v. Hechtman, 45 Minn. 238, 47 N. W. 792; Hoopes v. Auburn Water Works Co., 37 Hun. (N. Y.) 568; Sheehan v. Davis, 17 Ohio St. 571. Compare Johnson v. Bush, 3 Barb. Ch. 207.
59. Kelly v. Calhoun, 95 U. S. 710, 24 L. Ed. 544; Klemme v.
McLay, 68 Iowa, 158, 26 N. W. 533; Bennett v. Knowles, 66 Minn. 4, 68 N. W. Ill; Hopper v. Love-joy, 47 N. J. Eq. 573, 12 L. R. A. 588, 21 Atl. 298; Withrell v. Murphy, 154 N. C. 82, 69 S. E. 748; Holt v. Metropolitan Trust Co., 11 S. D. 456, 78 N. W. 947.
60. See Chicago First Nat. Bank v. Baker, 62 111. App. 154; Gessner v. Minneapolis etc. R. Co., 15 N. D. 560.
61. Copper Belle Min. Co. v. Costello, 11 Ariz. 334, 95 Par. 94; Chicago etc. R. Co. v. Lewis, 53 Iowa, 101, 4 N. W. 842; Frosl-burg Mut. Bldg. Ass'n v. Brace, 51 Md. 508; Eppwright v. Nicker son, 78 Mo. 482; Descombes v. Wood, 91 Mo. 196, 60 Am. Rep. 239; Tenney v. East Warren Lumber Co., 43 N. II. 343; Muller v. Boone, 63 Tex. 91; Mcdanlela v. Flower Brook Mfg. Co., 22 Vi