
    Jonathan Elwell versus Jones Shaw.
    A deed executed by an attorney, to be valid, must be made m the name of the principal.
    This was a writ of entry sur disseisin, tried before Wilde, J., upon the general issue, June term, 1817, at Castine. The demandant proved his seisin, deriving his title from the original proprietor of the demanded premises. The tenant, to maintain the issue on his part, read in evidence a letter of attorney from the demandant to one Joshua Elwell, in the following terms, so far as it-had any bearing upon the issue: “ Know all men by these presents, that I, Jonathan Elwell, of, &c., do make, ordain, constitute and appoint Joshua Elwell, of, &c.,my true and lawful attorney, for me and in my name, to sell any real estate, which I am now, or may be seised or possessed of, to such person or persons and for such sum or sums as he shall think proper ; and in my name to make, execute, and deliver such deeds and instruments, with such covenants, as he shall deem expedient, and shall be necessary ; hereby ratifying and confirming whatever my said attorney may do in the premises.” Also a deed executed by the said Joshua, conveying the demanded premises to the tenant and one Tyler P. Shaw in fee ; in which the said-Joshua, after a correct recital of the said letter of attor- [ * 48 ] ney, * proceeds thus : “ Now, know ye that I the said Joshua, by virtue of the power aforesaid, in consideration of two hundred dollars paid me by J. S. and T. P. S. of, &c., the receipt whereof I do hereby acknowledge, do hereby bargain, grant, sell and convey unto the said J. S. and T. P. S. a certain tract of land,” &c. [describing the demanded premises], “ to have and to hold to them, the said J. S. and T. P. S., their heirs and assigns forever ; and I do covenant with the said J. S. and T. P. S. that I am duly empowered to make the grant and conveyance aforesaid; that the said Jonathan, at the time of executing said power, was, and now is, lawfully seised of the premises, and that he will warrant and defend the same to the said J. S. and T. P. S. forever, against the lawful claims and demands of all persons. In testimony whereof, I have hereunto set the name and seal of the said Jonathan, this,” &c.; signed Joshua Elwell, and a seal. Both the said deeds were duly acknowledged and recorded.
    Upon this evidence, a verdict was taken for the tenant, by consent of parties; and if the Court should be of opinion that the said letter of attorney and the said deed of conveyance were sufficient in law to pass the fee from the demandant to the tenant, judgment was to be rendered upon the verdict; otherwise the verdict was to be set aside, and a new trial to be granted.
    
      White, for the demandant.
    It was essential to the validity of the deed, that it should have been made in pursuance of the power ; and this not being the case, the deed is inoperative. The power authorized the conveyance of the land in the name of the demand-ant ; instead of which it is made in the name of the attorney. The profession of acting as attorney in the deed is merely superfluous, and does not operate to make it the deed of the principal. The principles of law, which are presumed to apply to the present case, and to govern it, have been long settled, and it is believed, have - never been shaken. Coombes’s case 
       is a leading case on this point, and is very explicit. “ When * any has authori- [ * 44 J ty, as attorney, to do any act, he ought to do it in his name who gives the authority ; for he appoints the attorney to be in his place, and to represent his person; and therefore the attorney cannot do it in his own name, nor as his proper act, but in the name, and as the act, of him who gave the authority.” And the instance put there is of leases by indenture. This doctrine has been repeatedly recognized as law by the English Courts ; and by this Court in the case of Fowler vs. Shearer 
      .
    
      Mellen 
       and Wilson, for the tenant.
    The demandant has received a full compensation for the land, which he now demands ; and the question is, whether the act of his attorney, who received the money and made the deed, shall be binding upon his principal. The demandant relies on Coombes’s case, as a leading one in support of his objection to the deed ; but the position there laid down seems rather a dictum, assumed upon little deliberation or argument,. than the result of much investigation in that or any preceding case ; and if the facts there were strictly analogous to those in the present case, it might still be doubted whether it ought to be received as an authority; for it is difficult to perceive why the intent of the parties is not as plain, and as well effectuated, by the instruments shown in the case at bar, as if the deed had been made in strict conformity to the requirements in that case. The demandant intended to convey the land by his attorney : the attorney intended to execute the power, and he attempted to do so by a deed, according to his understanding of the power. All this is so well expressed as to be clearly understood. Now, to defeat the deed upon the strength of the difetum relied upon, and from which the other cases cited proceed would be to subvert another well-known principle of law, that the lawful intent of parties, when it appears by deed, shall be carried into effect.
    [ * 45 ] * But is it true that the deed in this case is not substantially in the name of Jonathan Elwell'! When one acts for another as his attorney, it is well understood, both in common parlance and in technical language, to be the act of the principal; and when authorized, if he make a deed, it shall be valid. Such was the decision in the case of Wilks & Al. vs. Back 
      . There Wilks, the attorney, executed the deed thus: “.For James Browne, Mathias Wilks,” and a seal. The same objection was there made to the deed as in the present case, and overruled on the ground, that the fact of the deed not being in the name of the principal was not supported by a fair construction of it, but was merely assumed; and it cannot be said, that the deed in that case appeared more clearly to be in the name of the principal, than the deed in the case at bar. This case goes far to do away the effect of Coombes’s case, and that of Frontín vs. Small, in all cases where the power is substantially executed. The case of White vs. Cuyler has no bearing as an authority in favor of the demandant. The execution of a power was not there in question, and the case expressly states that there was none. The observation of Lord Kenyon was therefore merely gratuitous, and ho authority.
    As to the case of Fowler vs. Shearer, the facts there were materially different from those in the case at bar. There the attorney, after describing herself as such in the beginning of the deed, after-wards expressly negatives her acting in that capacity, by alleging the estate to be her own.; and it appears by the case that in fact the fee was in her. As such 'she professed to convey it, and entered into the usual covenants as of her own estate, and executed the deed in her own name. But in the present case, on the contrary, the attorney professes to act in that capacity throughout, and not in his own right, which brings the case within the reason of the decision in Wilks & Al. vs. Back. Besides, the principles on which that decision was founded seem to have been adopted by this Court in the case of Dawes vs. Jackson 
       ; where a public [ * 46 ] agent had * failed to fulfil his covenants entered into “ as superintendent or agent of the Massachusetts state prison.” There it was held not to be the deed of the agent, but a contract on the part of the state; and that the party, injured by the failure of fulfilling the contract, was equitably entitled to indemnity from the government. Upon the same principle, the deed in the'case at bar cannot be the deed of the attorney. There is, therefore, no remedy against him upon the covenants contained in it. For these reasons it is confidently submitted, that the deed in question is substantially the deed of the demandant, and ought to bar him of his action. i
    
      
       9 Co. 76.
    
    
      
       2 L. Raym. 1418, Frontin vs. Small. —6 D. & E. 176, White vs. Cuyler
      
    
    
      
       7 Mass. Rep. 14.
    
    
      
       Now chief justice of the state of Maine. July, 1820
    
    
      
       2 East. 142.
    
    
      
       9 Mass. Rep. 490.
    
   Wilde, J.

We have examined the cases cited in the argument of this cause, with a strong wish to discover some ground, which would authorize a decision according to the apparent equity of the case. The objection made to the grant to the tenant is merely technical; and it is impossible that any one should doubt as to the intention of the parties. Nevertheless the objection is supported by all the adjudged cases relating to the point.

It does not appear that the authority of Coombes’s case is at all shaken by more modern decisions. All concur in laying it down as an indispensable requisite, to give validity to a deed executed by an attorney, that it should be made in the name of the principal. This was admitted by all the Court, in the case of Wilks & Al. vs. Back, cited by the counsel for the tenant. It is true there is a dictum of Lord Holt’s in the case of Parker vs. Kett , which seems to countenance a different doctrine. But his remark, although general, must be qualified by reference to the case then under discussion ; which brought in question the validity of the appointment and acts of a sub-deputy or attorney, made by the deputy of the steward of a manor, for the purpose of taking the surrender of a copyhold estate. Such an attorney, says his lordship, may act in his own name, and without reciting his power, and the taking of the surrender will be good ; and that which follows has *ref- [ *47"] erence to such a case, or to acts of attorneys in pais, and not, as I take it, to the execution of deeds.

The current of authorities being thus strong, we must remember that stare decisis is a rule of no inconsiderable importance, if we wish to preserve the stability of judicial decisions, and to relieve the law, as much as possible, from the reproach of uncertainty, which has so often been urged against it.

' It is important that the forms respecting the transfer of real estate should be strictly observed; otherwise great looseness may be introduced, and titles may thus become involved in great uncertainty. A seal, although it may seem an unmeaning ceremony, and not at all necessary to explain the intention of the contracting parties, is nevertheless an essential part of a deed. The difficulty in the case at bar has arisen from employing as a scrivener to write the deed, one who was unacquainted with the forms of conveyancing. This difficulty frequently occurs, and is a great evil. It is only to be prevented by a steady adherence, on the part of Courts, to the rules of law, whenever a question arises upon the operation of a deed, defective in any of the essential forms. These forms, in this country, are exceedingly simple: simple however as they are, it requires some knowledge of legal principles, to enable any one to apply them correctly .

New trial granted. 
      
       1 L. Raym. 658. —12 Mod 466. S. C. —Salk 95. S C
      
     
      
       [The oower of attorney must be under seal as well as the deed. Berkley vs. Hardy, 8 D. & R. 102. —5 P & C. 355. —Ed.]
     