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 owner of land may transfer it, not only by himself executing the instrument of transfer, but also by empowering another so to do in his absence. The execution of a conveyance by the agent of the grantor, in the grantor's absence, by virtue of the authority given the agent for this purpose, is to be distinguished from the case, before referred to,30 in which the signing of an instrument by the hand of another is adopted by the grantor as his own act, this being for all purposes his own signature.
A written instrument by which one is authorized to act as the agent of another, in connection with the transfer of land, as in other connections, is frequently, indeed ordinarily, referred to as a power of attorney.
The common law rule that authority to execute an instrument under seal must itself be under seal appears to be still recognized in a considerable Dumber of states,30a and, in so far as a seal may, in a particular jurisdiction, be necessary to the legal validity of a conveyance, an authority to one as agent to execute a conveyance must be under seal.31 But without reference to such a common law requirement of a seal, which obviously involves a requirement of a written instrument, the statutes of most of the states expressly require such an authority to be in writing, and some require it to be under seal.32
30. Ante, Sec. 457, notes 76, 77.
Since delivery is part of the execution of the instrument, it would seem that, in so far as a written or sealed authority may be necessary to enable an agent to sign or seal a conveyance of land, such an authority is also necessary to enable him to deliver the instrument. The question has been previously discussed.33
It is a technical rule of the common law that only those are bound by a sealed instrument who purport to be parties thereto and in whose names it is signed and sealed,34 and, applying this rule it has occasionally been decided that a conveyance executed by an agent was insufficient because it purported to be the deed, not of the intended grantor, but of the agent himself, even though the body of the instrument indicated that the person who signed and sealed it was acting merely as agent,35 or even though a statement of his agency was appended to his signature.36 In other cases, however,
30a. Huffcut, Agency, Sec. 26; Mechem, Agency, Sec. 212.
31. Tilton v. Cofield, 2 Colo. 392; Watson v. Sherman, 84 111. 263; Montgomery v. Dorion, 6 N. H. 250; Heath v. Nutter, 50 Me. 378; Shuetze v. Bailey, 40 Mo. 69; Blood v. Goodrich, 9 Wend. (N. Y.) 68, 24 Am. Dec. 121; Cadell v. Allen, 99 N. C. 542.
32. 1 Stimson's Am. St. Law, Sec. 1670.
33. Ante, Sec. 461, notes 53-58.
34. Huffcut, Agency (2d Ed.) Sec. 188; Mechem Agency, Sec. 1093.
35. Taylor v. Agricultural & Mechanical Ass'n, 68 Ala. 229; Stinchfield v. Little, 1 Me. 231, 10 Am. Dec. 65; Elwell v. Shaw, 16 Mass. 42, 8 Am. Dec. 126; Stone v. Wood, 7 Cow. (N. Y.) 453, 17 Am. Dec. 529; Bellas v. Hays, 5 Serg. & R. 427, 9 Am. Dec. 385.
36. Echols v. Cheney, 28 Cal. 157; Morrison v. Bowman, 29 Cal. 337; Harper v. Hampton, 1 Harr. J. 622; Brinley v. Mann, 2 Cush. 337, 48 Am. Dec. 689; Town-send v. Corning, 23 Wend. 442; Parmers v. Respass, 5 T. B. Mon.
Such strictness of view is not adopted, it being regarded as sufficient that it appears, either from the signature or from the body of the instrument, that it is intended to be the deed, not of the agent, but of the principal,37 and in some states there is a statutory provision to this general effect.38
The question whether an intention appears from the face of the instrument that it shall take effect as the deed of the principal is, in its nature, a question of the construction of the language used, as to which no absolute rule can be laid down.39 Such an intention does not ordinarily appear to be inferred from the fact that the person who executes the instrument is described therein as the agent of the principal, or that he professes to be acting under authority from the latter,40 though in some cases this appears to be regarded as sufficient for the purpose.41 That the convey(ky.) 562; Crawford v. Crawford, 77 S. C. 205.
37. Carter v, Chaudron, 21 Ala. 72; Magill v. Hinsdale, 6 Conn. 464a; Doe d. Tenant v. Roe, 27 Ga. 418; Avery v. Dougherty, 102 Ind. 443, 2 N. E. 123, 52 Am. Rep. 680; Nobleboro v. Clark, 68 Me. 87; Herbert v. Pue, 72 Md. 307; Hutchins v. Byrnes, 9 Gray, 367; Murphy v. Welch, 128 Mass. 489; Bigelow v. Livingston, 28 Minn. 57; Mcclure v. Herring, 70 Mo. 18; Hubbard v. Swafford etc. Co., 209 Mo. 495, 123 Am. St. Rep. 488, 108 S. W. 15; Hale v. Woods, 10 N. H. 471; Donovan v. Welch, 11 N. D. 113, 90 N. W. 262; Heffer-nan v. Addams, 7 Watts (Pa.) 116; Rogers v. Bracken's Adm'r, 15 Tex. 564; Shanks v. Lancaster, 5 Gratt. (Va.) 110, 50 Am. Dec. 108.
38. 1 Stimson's Am. St. Law, Sec. 1675; 1 Mechem, Agency, Sec. 1096, note 22.
39. See Haven v. Adams, 4 Allen (Mass.) 80; Nobleboro v. Clark, 68 Maine 87.
40. Jones v. Morris, 61 Ala. 518; Sheridan v. Pease, 93 111. App. 219; Fowler v. Shearer, 7 Mass. 14; First Baptist Church of Sharon v. Harper, 191 Mass. 196, 77 N. E. 778; Kiersted v. Orange & A. R. Co., 69 N. Y. 343, 25 Am. Rep. 199; Cadell v. Allen, 99 N. C. 542, 6 S. E. 399; Norris v. Dains, 52 Ohio St. 215, 39 N. E. 660, 49 Am. St. Rep. 716; Quigley v. De Haas, 82 Pa. St. 267; North v. Henneberry, 44 Wis. 306; See Hill v. Conrad, 91 Tex. 341, 43 S. W. 789.
41. Donovan v. Welch, 11 N. Dak. 113, 90 N. W. 262; Avery v. Dougherty, 102 Ind. 443, 2 N. E. 423, 52 Am. Rep. 680; Magill v. Hinsdale, 6 Conn. 464a. 16 Am. Dec. 70; Hubbard v. Swafford etc. Co., 209 Mo. 495, 123 Am. St. Rep. 488.
Ance is made by the agent as if in his own right, without any reference to the fact of agency, and without any mention of his principal by name, would obviously preclude the conveyance from operating to divest the principal's rights.42 That the instrument is signed in the name of A the principal "by" B the agent, is, it seems, sufficient to make the instrument effective as the deed of A, although it reads as the deed of B,43 while a signature B "for" A would be sufficient to make it A's deed if the instrument itself reads as the deed of A, and not otherwise.44