
    Gaines vs. Catron.
    A certificate by a clerk of the acknowledgment of a deed by the vendor of real estate not giving any description of the land or of the amount conveyed, is not good, and such deed can not be read.
    Where an act of the assembly was passed making valid certain certificates of probate, after such deed had been rejected in the circuit court for the insufficiency of the probate thereof: Held, that such act was void and could not cure such defects.
    Where two persons, each claiming separate authority to act as attorneys in fact for a third person, sign a., joint deed, such joint deed does not malte the act other than the several deeds of the persons.
    Where partners in merchandise purchase lands with their partnership funds: Held, that the right of survivorship does not exist in case of death of one of the partners, it not appealing that the lands were held in joint tenancy for the purpose of carrying on any useful trade «‘’manufacture or any purpose of commerce.
    John Catron instituted an action of ejectment in the circuit court of Tipton county against Edmund P. Gaines for the recovery of the possession of a tract of land lying in said county. A judgment was rendered upon an issue upon the plea of not guilty in favor of Catron. Gaines appealed in error.
    The facts of this case and the documentary evidence upon which the cause turned are so fully set forth in the opinion delivered by the court as to supersede the necessity of any additional statement in regard thereto.
    
      G. D. Searcy, for plaintiff in error.
    The court erred in charging that the deed of the surviving partner passed the title to all the lands specified therein: 1. Because John G. Blount does not attempt by this deed to convey the interest of Thomas Blount’s devisees; the deed is not signed by him as a surviving partner, nor is there any fact in the record from which it can be inferred that he intended by this deed to convey any thing more than his undivided interest. The fact of the existence of the partnership between himself and Thomas Blount, and the fact of the land having been purchased with partnership money does not prove his intention to convey as a surviving partner; on the contrary it is manifest, from the fact of his executing the deed in his individual name and the expressions in the deed, “my interest and title,” together with the fact that Catron obtained a conveyance from Thomas Blount’s executors, that the grantor never intended to convey, nor did the grantee expect by this deed to get a conveyance for more than John G. Blount’s undivided interest in the land. If it had been the intention of the parties to pass a greater interest the conveyance would have been executed by J. G. Blount as surviving partner, and the deed made to express clearly the quantum of interest conveyed, nor would there have been any necessity in taking a conveyance from the executors of Thomas Blount.
    2. This land was granted to John G. and Thomas Blount, not as partners, but to them individually. The grant is the only evidence of title, and the character in which they take is a part of their title, for upon it depends the destination of the land; as in this case, if they held in the character of partners for partnership purposes, upon the death of one of the partners his interest vested in the survivor. If they held in their individual characters the interest of the deceased partner vested in his devisees; therefore, parol proof cannot be received to show that the grantees were partners and purchased the land with partnership money: first, because it does not prove they held as partners for partnership purposes, and is therefore ■ irrelevant; secondly, if deemed relevant it has the effect, of' altering the grant and changing the destination of the land. The same argument will apply to the introduction of parol evidence to prove the character in which J. G. Blount executed the deed to Catron. If he executed it individually it passes only an undivided half of the fifteen thousand acres; if, as a surviving partner, it is contended that it passed the whole fifteen thousand acres, the effect of the evidence is to double the quantity or add to the deed an undivided interest of seven thousand five hundred acres. This is altering the deed.
    3. Suppose the land to have been bought with partnership money and held in the partnership name, we deny the right of the surviving partner to convey. The preamble to the 6th section of the act of 1784, ch. 22, declares survivor-ship in joint tenancy in real and personal property to be ■ manifestly unjust, and the enacting clause of that section destroys survivorship entirely. The proviso makes the following exceptions out of this general destruction of survivor-ship: first, lands held in joint tenancy for the purpose of carrying on trade and commerce: secondly, lands held in joint tenancy for the purpose of carrying on any other useful work or. manufacture established or pursued with a -view to profit to the parties concerned. These are the only exceptions; and the statute further provides that the lands so held shall vest in the surviving partner, not generally, but for a particular purpose, viz: to enable him to settle and adjust the partnership business and pay the partnership debts. It provides further, that so soon as this object is effected the surviving partner shall settle with and pay over the surplus to the heirs of the deceased partner, thus re-converting it into realty. The exceptions' contained in the proviso does not extend to lands purchased with partnership money nor to lands held by partners, but to lands held by partners for partnership purposes only, that is, for carrying on commerce and manufactories. The statute makes no other exceptions, the court can make none; and it vests in the surviving partner, not generally, but to enable him to settle and adjust the business and pay the debts, and for no other purposes: consequently a sale by him for any other purpose would be void as to the heirs or. devisees of' the deceased partner. The legislature intended by this statute to give persons who would invest capital in manufactures and useful works of improvement assurance that the realty necessary to carrying on trade should at their death be secured to their heirs. Before .the surviving partner can sell a necessity must exist, and such cannot be presumed. A naked deed unaccompanied with evidence of- necessity would give no title. See Bruce vs. Brake, 2 Litt. 244. In this case the lands, were not held in the partnership name; they, were not held for the purpose of carrying on trade, manufactures, or. any other useful work, nor were they sold to enable the surviving partner to adjust the partnership business or pay the partnership debts. The consideration expressed in the deed (viz. one dollar) negatives such an assumption. And if, by this deed, the surviving partner intended to convey the whole fifteen J;hou- - sand acres, the great disproportion between the consideration expressed and the value of the land would render the conveyance as to Thomas Blount’s devisees fraudulent and void. The case of M’Alister■ vs. Montgomery, 3 Hay. 94, cannot be relied upon asan authority in support of this sale. The facts of the case are not given, and the presumption is that they brought the case within the exceptions contained in the proviso of the statute. 'It decides nothing more than: first, in that particular case the surviving' partner had the right to sell; secondly, lands held for partnership purposes, upon the death of one of the partners, does not survive but descends and vests in the heirs at law of the deceased partner as real estate in other cases. If this last position be true then the case may be relied on as an authority against this sale. For it follows that if the interest of Thomas Blount in the land upon his death did not survive, but descended to his heirs at law, or by virtue of his will passed to and vested in his devisees, who held as tenants in common with the surviving partner, there being no unity of interest between the devisees and the surviving partner, the power of sale given by the statute to the surviving partner is a naked power and must be strictly pursued; he may sell, but for no other purpose than that of enabling him to settle and adjust the partnership business and'pay the partnership debts. Again; this deed was executed byF.B. Fogg and John Blount, junior, as attorneys of John G. Blount. If, upon the death of one partner, his interest vests in his heirs or devisees, and the power of sale given by the statute to the surviving partner be a naked power, it cannot be delegated. See 4 Litt. 395: 4 John. C. R,. 36S. Nor can a power, though coupled with an interest, be delegated if it be a personal power. In this case the surviving partner alone can judge of the necessity of sale; it is therefore a personal power.
    
      W. T. Brown, for defendant in error.
    In this case the deed from John G. Blount, senior, The surviving partner of J. G. and Thomas Blount, purports to convey the fee to the entire tract in dispute, and the question which goes directly - to the merits is:
    1. Whether J. G. Blount, as surviving partner, had a .right to sell and convey the land in controversy, the same having been purchased with partnership funds. The proviso to the act of 1.784, ch.22, sec. 6, is, that “estates held in joint tenancy for the purpose of carrying on and promoting trade and commerce, or any useful work or manufacture established and pursued with a view of profit to the parties therein concerned, shall be vested in the surviving partner or partners in order to enable him or them to settle and adjust the partnership business and pay off the debts which may have been contracted in pursuit of the said joint business; but as soon as the same shall be. effected the survivor or survivors shall account with and pay and deliver to the heirs, executors, administrators and assigns, respectively, of the deceased partners, all such part, share or sums of money as he or they may be entitled to by virtue of the original agreement, if any, or according to his or their share or part in the joint concern, in the same manner as the partnership stock is usually settled between joint merchants or the representatives of their deceased partners.” To bring the case within the proviso of the statute the defendant in error must show two things: first, that the land or estate was held in joint tenancy; secondly, that it was held for the purpose of carrying on and promoting trade and commerce, or other useful work or manufacture, with a view of profit to the parties. In regard to the first proposition there can be no ground for dispute. The land was purchased with partnership funds and held by the partners in joint tenancy. In regard to the second, we think the case within the meaning and spirit of the proviso. It is admitted that no trade or work or manufacture was established or carried on upon the land, nor is it necessary that such should have been the case. To say that the trade or work must be carried on upon the land to authorize the surviving partner to sell and convey would be giving to the statute a very narrow and restricted meaning. If such be the reading of the pi*oviso, although a partnership might own thousands of acres of land and owe thousands of dollars, a surviving partner would only be empowered to sell the lot upon which the store-house was erected • in which the trade was carried on, whilst all the valuable lands would descend to the heirs, and by operation of law be placed beyond the reach or control of the surviving partner. Such a construction, we contend, would defeat the very end and object of the proviso, to wit, the enabling “the surviving partner to settle and adjust the partnership business and pav off the debts which may have been contracted in pursuit of the said joint business.” The proof shows that J. G. and Thomas Blount were partners in trade; that they purchased a large amount of western lands with the partnership funds with a view to profit, no doubt believing at the time that the purchase of the western lands would at some, future day be a source of greater profit to them than the same amount of money vested in any other trade. Under these circumstances, to say that the proviso in question does not vest the lands in the surviving partner to adjust the partnership business and pay off the debts would be judicially to nullify the act of assembly. This view of the statute is fully sustained by a case reported in 3 Haywood, 94, where the act received a judicial interpretation; also a case in 6 Yer. 20. Should the court recognise the authority of these cases the right of John G. Blount to make the deed in question will be established.
    2. The right of the acting executors to convey under the will of Thomas Blount is not necessarily presented by the record, and the counsel for defendant in error requests that no 'opinion be given upon that question as the same question will be presented fully and distinctly at the next term of this court in a case now pending in the circuit court of Shelby county for one thousand acres of land covered by this deed,
    3. The probate of the deed made by F. B. Fogg, as attorney for Blount, is good and sufficient in law. See acts of assembly, 1840.
   Tukiev, J.

delivered the opinion of the court.

The premises in dispute between the parties in this case were granted by the State of North Carolina to John G. Blount and Thomas Blount July 2d, 1790, Thomas Blount, -by his will, executed on 23d August, 1808, divided all his interest therein amongst the three sons and two youngest daughters of his brother, William Blount, to be divided among them or those surviving at the time of his death, charging them, however, (together with other lands devised by him in the same way,) with a suln equal to all his just debts, to be raised in such a manner as his executors should think best. John G. Blount, Willie Blount, Thomas H. Blount and William G. Blount were appointed executors to the will, of whom only two, viz: Thomas H. Blount and William G, Blount qualified as such; John G. Blount and Willie Blount having neglected so to do. John G. Blount and Thomas Blount were partners in trade in 1785, and so continued to be till 1812, when Thomas Blount died.

On the 20th day of February, 1813, John G. Blount, by his power of attorney, constituted Francis B. Fogg his agent and attorney in fact, with authority for him and in his name and for his use and benefit to make sale of all and every tract and parcel of land, land warrants or other interest in. lands of which he was seized or possessed in the State of Tennessee, and to execute conveyances for the same. This power was confirmed by said Blount on the 23d of August; 1824. A similar power, but with the additional authority to compound, agree, settle and determine all disputes, law suits, hindrances, troubles, quarrels and molestations of and concerning his lands, was made by said John G. Blount to his son, John G. Blount, junior, on the 20th day of October, 1823.

On the 27th of August, 1823, Francis B. Fogg and John G. Blount, junior, as attorneys in fact for John G. Blount, senior, sold and conveyed the premises in dispute, together with several other tracts, amounting in all to ten thousand acres, for the nominal consideration of one dollar, to John Catron; the defendant. This deed of conveyance has the following certificates of probate endorsed on it:

“State of Tennessee, Maury county. Court of errors and appeals, sixth circuit, September term, 1823. Then the within power of attorney from John G. Blount, by his attorney, Francis B. Fogg, to John Catron, was produced in open court at said term, the execution thereof duly acknowledged by Francis B. Fogg as aforesaid, and ordered to be certified.”
“State of Tennessee, Davidson circuit court, November term, 1824. This indenture of bargain ánd sale between John G. Blount, senior, by his attorney in fact, John G. Blount, junior, of the one part, and John Catron of the other part, was acknowledged in open court by John G. Blount, junior, attorney in fact as aforesaid, to be his act and deed, and which is ordered to be registered.”
“State of Tennessee, Davidson county, circuit court.. This indenture of bargain and sale between John G. Blount, senior, by his attorney in fact, John G> Blount, junior, of one paid, and John Catron of the other part, was proven in open court to be the act and deed of Blount, by the oaths of Ephraim H. Foster and Thomas Martin, subscribing witnesses thereto-, and ordered to be registered. July 12th, 1825.”

This deed was registered in Weakley county on the 12th day of July, 1825, and in Obion county 21st July, 1825. On the 27th day of December, 1828, Thomas H. Blount and William G. Blount, the acting executors of the last will and testament of Thomas Blount, sold and conveyed all the lands contained in the deed executed by Francis B. Fogg and John G. Blount, junior, as the attorneys of John G. Blount, senior, to said John Catron, in satisfaction of the claims which one Elijah Robertson had upon the real estate of Thomas Blount and John G. Blount for his locative interest therein. The right to do this they claim under the poWéf in the will which authorizes the executors to fiaisé, in an^i manner they may think best, out of the testator’s lands devised to the children of William Blount, a sum équal to all his just debts.

Edmund P. Gaines, the plaintiff in error, intermarried with Barbara, one of the two youngest daughters of William Blount, and as such, a devisee under the will. She is dead, and he is tenant by the courtesy, and in possession of the premises.

Upon the trial the defendant objected to the reading of the deed executed by Francis B. Fogg and John, G. Blount, junior, as attorneys in fact for John G. Blount, senior. This objection was sustained so far as to its execution by Francis B. Fogg, but overruled as to John G. Blount, junior, and the de.ed as executed by him was permitted to be read. In this we think the court below erred, because there is no sufficient evidence of its execution in the probate endorsed upon the deed. The names of the parties are mentioned, but there is no description whatever of the land or the amount conveyed; and this at the time* of the trial was fatal. But it is contended, although the deed ought not to have been read as one executed by Francis B. Fogg and John G. Blount, junior, yet that it was properly executed by Francis B. Fogg; and although, at the time It was rejected for want of sufficient probate, the law sustained the judgment of the court, yet since an act of the legislature of the State having made the probate good, and the deed having been read, the court will now consider it as a deed executed by Francis B. Fogg. To this course there are two unanswerable objections:

1. We are compelled to decide the case upon the law as It stood at the time of the trial. If this were not so a judge would never know when he had settled the rights of parties. He decides the case as the law is and before the revising court meets the legislature changes the law and his judgment is reversed and a different one given, not because he committed an error but because the law has undergone a change. This question was before us at Nashville last term, and was decided as it now is.

2.,The deed as executed by Francis B. Fogg is not before the court; no more so than if it had been upon a distinct and separate piece of paper from that executed by John G. Blount, junior._ They were not joint attorneys in fact, but each in his own individual capacity was taking upon himself the representation of John G. Blount, senior; and their having signed the same deed has not made it their joint deed. But supposing the deed executed by Francis B. Fogg to have been sufficiently proven, the next question for consideration is, how much of the land in dispute does it convey? The plaintiff in error says the one half, the defendant the whole. We have seen that the land was granted to Thomas Blount and John G. Blount, and it is contended thatmasmuch as they , , , . i • were partners m trade at the time, the right oí existed in John G. Blount upon the death of Thomas Blount. Let us examine this proposition. By the act of 1784, ch. 22, the right of survivorship among joint tenants is abolished, with the proviso however, “that estates held in joint tenancy for the purpose of carrying on and promoting trade and commerce, or any other useful work or manufacture, established and pursued with a view of profit to the parties therein concerned, shall be vested in the surviving partner or partners in order to enable him or them to settle and adjust the partnership business and pay off the debts which may have been contracted in pursuit of the said joint business.” There can be no pretence for saying that the land in dispute in this case was held in joint tenancy by John G. Blount and Thomas Blount for the purpose of carrying on and promoting trade and commerce, or any other useful work or manufacture. There is nothing from which we can say it was bought by them in their partnership name; it is only by implication that the conclusion that it was paid for out of partnership effects can be arrived at. And, in the power of attorney to Francis B. Fogg and John G. Blount, junior, John G. Blount, senior, does not treat it as partnership property. He does not authorize a sale for partnership purposes; but the sales are to be of his lands and for his use. We therefore think that the deed executed by Francis B. Fogg, if it convey any thing, only conveys half the land, and that no more under any circumstances can be recovered. As to the question arising upon the deed from the acting executors of Thomas Blount, deceased, which is, whether when there are several executors, and some qualify and others neglect without a relinquishment of their right in open court, those who qualify can execute, without those who do not, a trust reposed in the executors of the will to raise money by the sale of real estate, we forbear giving an opinion, as it is not pressed by the plaintiff and has not been argued by the defendant.

The judgment of the circuit court will be reversed and the case remanded for a new trial,.  