FEDERAL DECISIONS.

CONVEYANCES.*

[As to Corporate Securities, see BONDS. Mortgages of Ships, Bottomry Bonds, etc., see MARITIME LAW. See, also, Railway Companies, under the title CORPORATIONS; EQUITY; LIENS.]

VI. VALIDITY AND OPERATION, §§ 192-246, VIII. PROOF OF DEEDS, §§ 373–379.

I. FORM AND EXECUTION.

§ 1. A seal is essential to conveyance of real property, but the existence of the seal may be presumed from any expressions used in the conclusion of the instrument or in the attestation indicating that a seal was affixed. Le Franc v. Richmond, 5 Saw., 601, 603.

§2. The presumption thus indulged is more just and natural where the original instrument is lost, and resort is had to secondary evidence of its contents. Ibid.

§ 3. In California a scroll, if intended to be a seal, is regarded as a seal, though no reference is made to a seal, either in the body of the deed or in the witnessing clause. Burton v. Le Roy, 5 Saw., 510, 513.

§ 4. Seal of corporation. Where a deed is sealed with the corporate seal, and the signatures of the proper officers appearing signed thereto, the presumption is that these officers did not exceed their authority in this respect; and the seal itself is prima facie evidence of their authority. Mickey v. Stratton, 5 Saw., 475, 478.

§ 5. A deed not under the corporate seal of a bank, but under the private seal of its president, is not the deed of the bank. Bank of the Metropolis v. Guttschlick, 14 Pet., 19, 29.

§ 6. Witness. At common law, no witness to a deed was necessary. At an early day in the history of England, the names of witnesses were often found indorsed on the back of the deed, or were mentioned within it. New York Dry Dock Co. v. Hicks, 5 McL., 111.

§ 7. A deed attested by one witness is inoperative to convey lands in a state where the law requires for that purpose the attestation of two witnesses. Clark v. Graham, 6 Wheat., 579. § 8. Under the statute of New York, it is not necessary that it should appear that the subscribing witness became such at the request of the grantor. Nor under the Illinois statute of 1847 is it necessary. Carpenter v. Dexter,* 8 Wall., 513.

§ 9. Under the Oregon statutes, it seems that the attestation of a deed is no part of its execution, but only a means of preserving the evidence of it. Goodenough v. Warren, 5 Saw., 494, 498.

Edited by LEONARD A. JONES, Esq., of Boston, Mass., author of treatises on Mortgages of Real Property; Mortgages of Personal Property; Railroad and other Corporate Securities; Pledges, including Collateral Securities; to be followed by a treatise on Liens.

§ 10. Signing.- A deed need not be signed by the grantor, but if he adopt the signature of himself affixed by another party; it takes effect as his deed just as completely as though he had executed it himself. Riggs v. Boylan, 4 Biss., 446.

§ 11. Signing by corporation.- A corporation can only make a deed by its directors acting as a board of directors.. A writing is not the deed of the corporation when it appears that it was only signed by the directors in pursuance of an informal understanding among the majority of the directors, and that the subject never came before the directors as a board, or was acted upon by them at any meeting of the same. In re St. Helen Mill Co., 3 Saw., 88, 92.

§ 12. The authority of the trustees of a town to execute a deed must be shown when it is relied upon in an action. Wallace v. Dewey,* 3 McL., 548.

13. Stamp. A deed duly stamped is valid although the grantor holds under an unstamped deed. Kinney v. Con. Virginia M. Co., 4 Saw., 383, 429.

§ 14. The grantee. It is not essential to the validity of a deed that the grantee be named. If he be so designated by other description that he can be distinguished from all others, the grant will be good without any name at all. Friedman v. Goodwin, 1 McAl., 142.

§ 15. A conveyance of a bare legal title to the equitable owners 'of land, describing the grantees as the "legatees and devisees of A. B., deceased," is a sufficient description to pass title to the persons mentioned in the will of A. B. as legatees and devisees. Webb v. Den,* 17 How., 576.

*

§ 16. A conveyance to “P. H. & Son,” a copartnership, P. H. having only one son, passes a title to the son. Hoffman v. Porter, 2 Marsh., 158, 159.

§ 17. A title by deed implies a contract, or, at least, competent parties. A deed to a person having no existence is generally inoperative, and passes no title from the grantor. If a man grant his estate to an imaginary corporation, which exists only in his own mind, no title passes; and it is precisely the same if it is granted to a corporation, rendered incapable by its charter of taking the grant. As to that particular faculty it is not a corporation. Russell v. Topping, 5 McL., 194, 204.

§18. The identity of a grantee in a deed is a question of fact to be established, ordinarily, by evidence dehors. Babcock v. Pettibone, 12 Blatch., 354, 356.

§ 19. A grant to a deceased person, at common law, passes no estate to his heirs. Dougherty v. Edmiston,* Cooke, 134.

§ 20. But it is otherwise under the act of the legislature of North Carolina of 1779. Ibid.

II. DEED UNDER A DECREE or Power.

1. Deeds Under Decrees.

SUMMARY-Deed under decree, § 21.- Proof of decrees, § 22.

§ 21. A deed of land made pursuant to a decree of court is valid without proof of the decree. Hanrick v. Neely. §§ 23, 24. See § 31.

§ 22. Proof of a decree of court is not necessary to support the delivery of a deed executed in obedience to such decree.

[NOTES.-See §§ 25-32.]

Ibid.

HANRICK v. NEELY.

(10 Wallace, 364-366. 1870.)

ERROR to U. S. Circuit Court, Western District of Texas.

STATEMENT OF FACTS.- Trespass to try title. Plaintiff proved title in one Zarsa, and a letter of attorney to one McKinney, authorizing him to sell or to substitute another in his stead. It was proved that one Williamson was substituted, and that negotiations by him for a sale of the land failed, and that he was required by decree of court, made pursuant to resulting litigation, to convey the land. The deed made pursuant to the decree was offered in evidence, but was rejected because the decree was not produced.

§ 23. Deed made pursuant to a decree.

Opinion by MR. JUSTICE DAVIS.

It may be true that the deed which the court below rejected was executed because of the decree made by the district court for the eastern district of

Texas, and that it would not have been made if the decree had not been rendered, but it does not follow that the decree was necessary to its validity. The fee of the lands was in Zarsa, and the power of Williamson, his attorney in fact, to sell and convey them to Hanrick, was plenary, and did not require to be employed, that a court of justice should act on it. If Williamson was stimulated by the decree to exercise the power thus vested in him by Zarsa, what right have the defendants to question his action or complain of it? They are not concerned with the reasons that induced him to act, nor with the nature or result of the litigation with Hanrick. All that they are interested to know is, that Zarsa had title to the lands, that he authorized Williamson to sell, and that the conveyance to Hanrick was in due form of law. The decision by this court in Games v. Stiles, 14 Pet., 322, is a direct authority against the position taken by the court below. In that case, Buchanan, the purchaser from the United States of lands in Ohio, sold them to Sterling, but recited in his deed that the conveyance was made in pursuance of a decree of the circuit court of the United States for the district of Virginia. The court held that it was not necessary to prove the decree to sustain the deed; that as Buchanan was the patentee of the land, although he made the deed under the authority of the decree, yet the deed was good without the decree, which could add nothing to its validity. If anything, the case at bar is stronger than the case just cited, because Zarsa does not recite in the body of the deed that the conveyance is made in consequence of the decree, and we only learn the fact that it was so by an indorsement on the back of the deed.

§ 24. proof of a decree of court to support delivery. One other point remains to be noticed. It seems that the court based its rejection of the deed also on the ground that it was delivered by the clerk to Hanrick in obedience to the decree of the court, and that therefore proof of the decree was necessary to support the delivery. But the deed was not complete without delivery, and the decree of the court was no more essential to give validity to the delivery than it was to any other formality necessary to the full execution of the instrument. Williamson authorized the delivery, and has acquiesced in it, and no one else can object to the mode by which the act was accomplished. All that the defendants are interested in is the fact of delivery, and about this there is no dispute. They are no more concerned with the considerations that induced Williamson to deliver the deed to Hanrick, through the clerk of the court, than they are with the motives that prompted him to affix his signature and seal to the instrument. Apart from this, Hanrick, the grantee, being in possession of the deed, which upon the face of it is regularly executed, and having had it recorded, the presumption is that it was duly delivered. Carver v. Jackson, 4 Pet., 84; Ward v. Lewis, 4 Pick., 520. It is therefore clear that the circuit court erred in rejecting the deed, and on that account its judgment is reversed and a venire de novo awarded.

$25. A deed executed under a decree is binding without a reference to the decree, if a consideration be named in it. Reference to the chancery proceeding need be considered for no other purpose, except as showing a consideration. Tardy v. Morgan, 3 McL., 358, 360.

26. A deed signed " W., guardian of M.," and acknowledged "to be his act and deed as guardian as aforesaid, and thereby the act and deed of the said M.," is a good execution of a decree to convey. Van Ness v. Bank of United States, 13 Pet., 17, 20.

27. A deed executed by a guardian ad litem of an infant, in pursuance of a decree of court, recited in the in testimonium clause that the infant by her guardian had set her hand and seal, and it was signed by the guardian and sealed with his seal. He acknowledged the instrument to be his deed as guardian and thereby the act and deed of the infant. The exe

cution and acknowledgment were held good. Bank of United States v. Van Ness, 5 Cr. C. C., 294.

$28. The recital in a deed that it was executed in pursuance of a decree, where a decree was not necessary to its validity, is surplusage. Dunn v. Games, 1 McL., 321, 323.

§ 29. A decree ordering a conveyance operates as a conveyance in Ohio. The party to whom it is ordered to be made takes as purchaser for a valuable consideration. Steele v. Spencer,* 1 Pet., 552.

§ 30. Under a statute which makes a decree to operate as a conveyance, a decree of a court in another state cannot have this effect. Watts v. Waddle, 1 McL., 200, 204.

§ 31. If the owner of the fee in a deed recites therein the decree of a court, in pursuance of which it is made, it is unnecessary to prove the latter, as the deed is good without it. Games v. Stiles, 14 Pet., 322, 326. See § 21.

§ 32. It is not in the power of one state to prescribe the mode by which real property shall be conveyed in another. A decree cannot operate beyond the state in which the jurisdiction is exercised. Watts v. Waddle, 6 Pet., 389, 399.

2. Deeds Under Powers.

[See AGENCY, XIII.]

§ 33. A valid deed cannot be executed by an attorney acting under a power not under seal. Piatt v. McCullough, 1 McL., 69, 82.

§ 34. A deed executed by an attorney, apparently within the scope of his power, which admits payment of the consideration, is presumptive evidence of the conveyance of the legal estate, but it is competent for the principal to show that the transaction was in appearance only, and not in fact, within the authority bestowed. Morrill v. Cone, 22 How., 75.

§ 35. A deed made by one person in the name of another is not good unless a power of attorney to make it is shown. United States v. Patterson, 15 How., 10, 12.

§ 36. A deed executed by an attorney in his own name does not bind his principal. Barger v. Miller, 4 Wash., 280.

$37. Under the Mexico-Spanish law a deed by an attorney in fact as such in his own name conveyed the title of his principal. Such an instrument is deemed the act of the principal and not of the attorney. Hanrick v. Barton, 16 Wall., 166, 173.

§ 38. A deed of lands belonging to a state, executed by the governor of the state in pursuance of a statute, conveys the interest of the state, although the deed is not in terms in the name of the state. Sheets v. Selden,* 2 Wall., 177.

III. DELIVERY AND ACCEPTANCE.

SUMMARY-What constitutes delivery, § 39.— When delivery as an escrow takes effect, § 40.— Revocation of a deed, § 41.

§ 39. To constitute the delivery of a deed it is not necessary that it should be in fact handed over to the grantee, or to a person in trust for him; but where there is no actual handing over of the deed, some act must be done, or word spoken, to indicate such an intent in order to make it effectual. Its mere execution, or putting it on record after execution without the knowledge of the grantee, is not sufficient. Ruckman v. Ruckman, § 42.

§ 40. Nothing passes by a deed until delivery. When a deed is delivered as an escrow, nothing passes until the condition is performed. The delivery, when the condition is performed, does not, as a usual thing, relate back to the former delivery and execution of the deed, but may do so under some circumstances. Calhoun County v. American Emigrant Co., SS 43-46.

§ 41. It is not a revocation of a deed to take it back from one to whom its custody has been committed when that person has become infirm and an unsuitable custodian. The possession of a deed by the grantor does not, without more, operate its revocation. Brown v. Brown, $$ 47-50.

[NOTES.-See $$ 51-79.]

RUCKMAN v. RUCKMAN.

(Circuit Court for New Jersey: 6 Federal Reporter, 225-227. 1881.)

Opinion by NIXON, D. J.

STATEMENT OF FACTS.- This is a suit for the foreclosure of a mortgage, originally brought in the court of chancery of New Jersey by Margaret Ruck

man against James H. Marley, John F. Brylan, and the husband of the complainant, Elisha Ruckman, and removed into this court on the petition of the defendant Ruckman.

The bill alleges that in the month of September, 1878, the defendant Marley applied to Elisha Ruckman for the loan of $5,000 on mortgage; that the loan was made, and in order to secure it the said Marley and wife executed a bond and mortgage to the defendant Brylan, bearing date September 28, 1878, and that shortly afterwards the said Brylan made and executed an assignment of the same to the complainant, whereby the title to the bond and mortgage became vested in complainant. It further sets forth that the bond, mortgage and assignment were not in possession of the complainant, but were in the possession of the defendants Ruckman and Brylan or one of them; that she was entitled to the same, and the money due thereon, as her separate estate, and prays that Ruckman may be decreed to pass over to the complainant the original bond and mortgage and assignment, if in his possession or under his control; that the same decree may be entered against Brylan, if they should be in his possession or under his control; and that Marley may be decreed to pay the mortgage debt and accrued interest to the complainant, and may be protected by the decree of the court from the bond and mortgage, if they should not be in the hands of the complainant to be surrendered and canceled on the payment and discharge of the same.

The defendant Elisha Ruckman, in his answer, admits the loan of $5,000 by him to Marley, and the execution of the bond and mortgage to Brylan to secure the payment thereof; and also the execution of an assignment of the same to the complainant; but he claims that he retained the possession of the papers; that they were never delivered to the complainant; that no gift was made by him to her, nor intended to be made; and that after she deserted his bed and board, to wit, about the 10th of March, 1879, he surrendered the assignment, which had been formally made to the complainant to Brylan, to be destroyed, and also delivered to him the bond and mortgage, in consideration of which Brylan gave to him his promissory note for $5,000, payable in one year from September 27, 1878,- the date of the mortgage, and that he had no further interest in the same. Although hundreds of pages of testimony have been taken, the only question in the case is whether the complainant is the owner of the bond and mortgage on which the suit is founded. If she is not, her action must fail, whoever else the owner may happen to be. And this question is determined when we ascertain whether the complainant has shown a sufficient delivery to render the assignment effectual to vest in her the title to the mortgage. The complainant herself has been examined, and I have carefully read her testimony upon this point. It falls short of the legal requirements in such a case. She does not pretend that the papers were ever in her possession or delivered to her. The most that she claims is that they were promised to her. The substance of her evidence is that Ruckman, her husband, told her on several occasions that he would make such a loan for her benefit; that he afterwards informed her he had done so, and that the mortgage was hers, and that after their separation he promised to send it to her, but never did so. 842. What is necessary to constitute a delivery of a deed.

It is not insisted that, in order to constitute the delivery of a deed, it is necessary that it should be in fact handed over to the grantee, or to a person in trust for him; but where there is no actual handing over of the deed, some act must be done, or word spoken, to indicate such an intent, in order to make