
    Fitzpatrick vs. School Commissioners.
    1. Where the name of a party is forged to a note as a security thereto, and he subsequently takes a deed of trust on property to secure him ' against liability, the acceptance of such deed of trust amounts to a ratification of its execution.
    2. Parol proof is admissible to prove that a note sued on was the specific note intended to be secured by deed of trust»
    3. Where a party ratified his signature to an instrument for the payment of money by the acceptance of security, the failure of such security in the absence of fraud could not affect the validity of the ratification.
    This is an action of debt instituted by the Commissioners of the Caperton Cove School Tract against Fitzpatrick, Gibson, and Ryan Caperton, in the Circuit Court of Franklin county, on the following note:
    “One day after date, we or .either of us, promise to pay William Jackson and others, Commissioners of the Caperton Cove Tract of School Land, $671.29, value received/’.
    Signed, RYAN CAPERTON,
    B. F. GIBSON,
    JOHN FITZPATRICK.
    Gibson and Fitzpatrick, pleaded, non est factum. Verdict and judgment for plaintiff against Fitzpatrick: a motion for new trial was overruled and judgment rendered, from which there was an appeal to this court.
    There was no evidence that Fitzpatrick signed his name to the note, or authorized any other person to do it for him* It was proved that the name of John Fitzpatrick to the note was not in his hand writing.
    The plaintiffs offered in evidence a deed of trust on certain slaves, executed by Ryan Caperton to James G. Caperton, and bearing date on the 21st of July, 1842. This deed purports to convey to the trustee the interest of Ryan Caperton in the slaves named in the deed to indemnify Gibson and Fitzpatrick, and to secure the payment of-a debt of $400, to Maria Ca-perton. The condition of the deed contains the following clause, to wit: “Whereas, I am bound unto John Fitzpatrick andB. F. Gibson, in about $700, as my security to the School Commissioners by note, due the 25th of December, 1841,”
    The defendants objected to the' reading of the deed, but the objection was over-ruled, and the deed was read.
    There was evidence that Fitzpatrick paid the Register’s fee for registration. There was also evidence conducing to prove that the “School Land Commissioners” did not hold any other note on the same persons. The debt referred to in the deed of trust, was to the “School Commissioners.”
    It was proved that Ryan Caperton had no interest in the ne-groes, embraced in the deed of trust at its date.
    “The court, A. J. Marchbanks, among other things not excepted to, charged the jury as follows: The defendants by their plea having denied the execution of the note sued on, it devolved upon the plaintiffs to prove that they executed it as * set forth in their declaration. If the defendants did not in proper person execute the note, nor authorize any person to do it for them, then to make it their act and deed and binding upon them they, subsequently to the execution of it, must have ratified it: ratification means to confirm, to make good. If the note sued upon was executed in'the defendants names by Ryan Caperton without their authority, it was not binding upon them without they saw proper to, and did ratify it. If Caper-i ton executed the note In the names of the defendants, without! any authority from them to do so, and they afterwards ratified < it, such ratification would make it as binding upon them as if they had executed it in proper person. The instrument sued ! upon being a promissory note, a parol ratification would be good. If the note was executed by Caperton in the names of the defendants, and they subsequently to the execution of it, took from Caperton a deed in trust upon property to indemnify them against their liability, such an act would amount to a ratification of the note, and would make it binding upon the defendants. If the defendants took from Caperton a deed in trust to indemnify them against a liability, they were under for him as his sureties to a note, before that deed could have any influence upon the mind of the jury, they would have to be satisfied from the evidence in the case, that the note for which the deed in trust was taken to indemnify the defendants against the payment of, was the note sued upon. If the note sued upon is not of the description of the note mentioned in the deed in trust, but of a different description, notwithstanding that variance in description, if in point of fact, it be the same note, it is competent for the plaintiffs to show that fact by parol eyidence. If the note sued upon is the same, that ■the parties intended to cover by the deed, but by mistake they therein misdescribed it, it is competent for the plaintiffs to show that mistake by parol evidence. If Ryan Caperton without the authority of the defendants executed the note in their names and subsequently to induce them to ratify it, represented to them, that he had an interest in the negroes mentioned in the deed, and that he would convey them in trust to indemnify • them, and they confiding in his representation ratified the note, and took the deed, when in fact Caperton had no interest in the negroes, such a representation would be fraud on the part of Caperton, but the rights of the plaintiffs could not be effected thereby. Such a fraud on the part of Caperton would not release the defendants from the payment of the note. If the plaintiffs to induce the defendants to ratify the note, had falsely represented that Caperton had an interest in the ne-groes, when he had none, and they confiding in that represen- .. tation had ratified it, a ratification so procured would not be ' binding upon the defendants. If there were three School Land ; Commissioners, and Ryan Caperton was one, and he executed *the note sued on, in the names of the defendants without their , authority, and afterwards, and whilst he was a Commissioner, but atthe time when he was acting for himself, and without the approbation of the Commissioners, he to induce the defendants to ratify the note falsely represented to them that he had an interest in the negroes mentioned in the deed, when in fact he had none, and they thereupon ratified the note, and took the deed, such a transaction would be a fraud on the part of Caperton, but it could not effect the rights of the plaintiffs. Such a corporation being constituted of three members, its rights cannot be effected by the conduct of one member without the approbation of the others, it requiring the concurrence of two to a corporate act. If Caperton, without the authority of the defendants, executed the note in the names of the defendants, they would not be bound by it, unless they ratified it. If the jury should be satisfied from the evidence, that Fitzpatrick ratified it, but that Gibson did not then as to the former they should find the issue in favor of the plaintiffs, and as to the latter in favor of him.
    The jury returned a verdict for the plaintiffs against the defendant Fitzpatrick. Whereupon the said defendant, Fitzpatrick, moved the court for a new trial, on the grounds: 1st. that improper evidence was admitted to go to the jury. 2nd. that the court erred in its charge to the jury. 3d. that the verdict is contrary to law and evidence. But the court over-ruled the motion.”
    And judgmentwas rendered for the Commissioners, and defendants appealed.
    
      Taul, for plaintiff in error.
    
      Venable, for Commissioners.
   Turley, J.

delivered the opinion of the court.

This is an action of debt brought by the Commissioners of the Caperton’s Cove School Tract of Land, in Franklin county, against Ryan Caperton, Benj. F. Gibson and John Fitzpatrick, upon a promissory note, purporting to have been executed' by them to the plaintiffs for the sum of $671 29.

To this action Benjamin F. Gibson and John Fitzpatrick pleaded non est factum, and upon the trial, the jury found that it was not the note of Benjamin F. Gibson, but that it was the note of John Fitzpatrick, and there wasjudgment accordingly, from which Fitzpatrick appealed to this court.

Upon the trial, it appeared that the signature of John Fitzpatrick was not in his hand writing, and there was no proof that he had ever authorized Ryan Caperton to sign his name to the note for him.

But the plaintiffs produced and read in evidence a deed of trust, executed by Ryan Caperton to James Caperton, purporting to convey certain slaves to-indemnify Gibson and Fitzpatrick for their liability as his securities to a note to the School Commissioners for about $700. It appeared that Fitzpatrick paid the fee for registrating this deed, which showed his knowledge of its execution, and the purpose for which it was executed, but there was nothing in the proof bringing home the knowledge to Gibson.

To the reading of this deed, the defendant objected, but his objection was over-ruled by the coart, and there are now several causes of error assigned against this course of proceeding.

1st. It is contended, that the court erred in holding, that though the note were a forgery, in its conception as to Gibson and Fitzpatrick, yet if they subsequently took a deed of trust upon property to indemnify themselves, it would amount to a ratification of its execution on their part.

We can see no error in this: it being a promissory note, no re-execution or redelivery was necessary, and the taking security for their indemnification, is an acknowledgment of their liability as securities.

2nd. It is contended that the court erred in holding, that parol proof was admissible to show, that the note sued on, was the one intended to be provided for by the deed of trust.

We see no error in this: the note was in possession of the School Commissioners, and perfect accuracy of description was not to be expected in the deed of trust, and proof was properly heard to show that the note described in the deed of trust though not with perfect accuracy, was the one executed to the Commissioners.

3rd. It is contended that the court erred in holding, that though Caperton represented to Gibson and Fitzpatrick, that be had title to the land, whereby they were induced to accept of the security, they would not thereby be released from the effect of this ratification, unless the School Commissioners had been parties to the fraud.

We can see no error in this: the question was simply one of ratification or no ratification; the consideration for which the ratification was made, if it were made, cannot effect it in any way whatever; no consideration is necessary to support it, and no matter how fraudulently Caperton may have acted in procuring it, it is good in favor of the plaintiffs, unless they were participators in the fraud.

These constitute the substantial objections to the proceedings in this case in the court below; there being no error in them, the judgment must be affirmed.  