
    Locke v. Isaac Alexander & Ch’s T. Alexander.
    From Cabarrus.
    An attorney, acting' for his principal, should perform the act in the name of the principal.
    Mesne profits during the enjoyment under a defective title, cannot he set-off against the claim of interest upon the purchase money, because the possessor is liable to the rightful owner for them. But where it appears that the possessor has enjoyed the lands, and cannot be called to account for the mesne profits, the reason of the rule ceases, and it does not apply.
    This was an action of covenant. On the 10th of May, 1810, the Defendants executed to one Merrill, an instrument of writing, which, after reciting that the Defendants acted in the execution of the instrument, in their own behalf, and as attorneys in fact for John Springs and Sarah his wife, John M’Coy and Catharine his wife, and Cunningham Harris and Mary his wife, witnessed, that the Defendants, “ as attorneys aforesaid,” received the consideration money, and conveyed to Merrill in fee simple, certain lands, and all the estate, right, title, in-Merest, claim and demand and property of the said Defendants, “ as attorneys aforesaid,” of, in, and to the said lands. The conclusion of the instrument was as follows: “ and the said Isaac and Charles T. Alexander, as attorneys aforesaid, for themselves and their heirs, the aforesaid lands and premises, and every part thereof, against them and their heirs, the claim or claims of all and every other person or persons whatsoever, to the said Jonathan Merrill, his heirs and assigns, shall and will forever warrant and defend, by these presents. In witness whereof,” &c. The paper wTas signed and sealed by the Defendants in their own names, and not as attorneys. The powrer of attorney was as follows :
    “ Know all men concerned, that we, John Springs, Cunningham Harris, and John M’Coy, joint heirs with Isaac and Charles T. Alexander, of the estate of Evan Alexander, deceased, have made, constituted and appointed, and by these presents do make, constitute and appoint the above named Isaac Alexander and Charles T. Alexander, our true and lawful attorneys, for us and in our names to lease, let, sell or demise all or any part of the real estate of the aforesaid Evan Alexan-ander, deceased, to such person or persons, and for such price or sum of money as they may in their judgment think fit, and to make and execute titles for the same absolutely in fee simple.: — add also in our names and on our behalf) to seal, execute and deliver such deeds, conveyances, bargains and sales, for the absolute sale or disposal thereof, with such clauses, covenants and agreements to be therein contained, as our said attorneys may think fit and expedient, and we do hereby ratify and confirm all such deeds, conveyances, bargains or sales, as shall or may hereafter at any time be made, sealed and executed by our said attorneys, touching or concerning the above named premises. In witness,” &c.
    Merrill conveyed his interest to the Plaintiff, and after, the death of Springs and Harris, in 1816, both of whom, in right of their wives, had a life estate, the Plaintiff was turned out of possession of three-fifths of the land mentioned in the deed. The Plaintiff was in possession and enjoyed the mesne profits, until the death of Springs and Harris. The case, by consent of parties, was considered as being between Merrill, Plaintiff', and the Alex-an¿ergj an¿ reC0vd amended accordingly. On tin; trial below it was contended, that Merrill could recover no more than the value of the life estate of M’Coy, Springs and Harris, as nothing more was conveyed ; but the Court held that the Plaintiff was entitled to the value of the fee simple.
    It was further objected, that as Springs and Harris had permitted Merrill to remain in the use and occupation of the land, from the date of the deed until their death, lie was entitled to no damages during that period. The Court instructed the Jury to ascertain the value of the fee simple of the land at the time of the sale, and to give interest thereon up to the rendition of judgment. The Jury did so. A new trial was moved for and refused, and Defendants appealed.
    
      Wilson for the appellants,
    contended, that interest on the value of the land should not be computed while Plaintiff was in possession, for he would then have both interest and mesne profits. That Defendants were liable, having signed the deed, was admitted, but they were liable only to the extent that the persons for wiiom they acted would have been liable; they have done nothing more than convey the title of Springs and Harris. The habendum in a deed cannot give any interest to a person not named in the premises — (3 Bac. “ Feoffment,” C.— Co, Lit. 6 a. The habendum cannot retract a gift mentioned in the premises, but may explain it — {Lit. 21 a— 3 Bac. 151 — Cro. Jac. 282.) If an estate for life is created, and a general warranty in fee simple, the warranty does not enlarge the estate — (Co. Lit. 385, a.)
    
    
      A. Henderson, contra.
    
    The deed shews clearly that a fee simple was intended to be conveyed, and whether the Defendants, as attorneys, had a right to convey a fee simple or not, must be collected from the deed by those who might wish to purchase: there is nothing in the deed to shew that only a life estate was intended to be conveyed. Defendants have made themselves personally liable by the deed; although they profess to act as attorneys in fact, they having signed their own names — (2 Wheaton 55-6, note — 6 Term Rep. 176.) In executing a deed as attorney, the proper mode is to sign the name of the principal — (2 East 142 — 5 East 148 — 4 Mass. Rep. 595 — 8 Ibid. 162.)
    As to the damages, they are given correctly — (8 Caine’s Rep. 111 — 9 Johns. 324 — 2 Wheaton 62-3-4, note.')
    
   IIeNUjkrsoN, Judge.

This case presents difficulties to the Plaintiff’s right of recovery on the merits, and I am not prepared to solve them. It is very doubtful whether any thing, as between the parties, passed by the «leed. In the first part of the premises, it is said to be a deed between Isaac and Charles T. Alexander, in their own behalf, and as attorneys for Springs, Harris and M’Coy, in right of their respective wives, (naming them) of the one part, and Jonathan Merrill of the other, and witnesseth, that the said Isaac and Charles T. as agents and attorneys as aforesaid, in consideration of two thousand dollars, to them as attorneys as aforesaid, paid by Jonathan Merrill, bargain and sell the lands mentioned in the deed, and all their right, title, and interest as attorneys : in the warranty or covenant for enjoyment, they act in their own behalf, as well as attorneys 5 and they execute the deed in their own names, and not in their characters of attorneys. Attorneys are the mere instruments of their principals : the principals act by them, and the act, to be the act of the principal, must be done in his name: this deed is the act of the Alexanders, not of their principals ; the attorneys are not the instruments of their principals, but the actors in the transaction j uor does this reasoning at all conflict with the opinion of this Court in the case of Potts and Lazarus, was there decidid, that the agent was not bound j but no|. necessarily foliow that the principal was. • If the principal is not bound, it is a strong argument to shew that the agent was intended to bo bound; but in this Court, a Court of Law, we look at what the parties really did, not what it is probable they intended to do ;/ and as to the deed’s passing the interest of the Alexanders, the whole of the granting part, and the receipt of the consideration money by which the use was to be raised, is in tho name of them as attorneys, not in their individual names or rights. It is therefore matter of great doubt, whether any thing, oven as between the parties, passed, either the interest of the principals or of the attorneys ; and if the covenant is a dependent one, it falls to the ground with the interest it was intended to warrant, defend, or protect. It is the common doctrine of warranty, that it is annexed to, and dependent on the estate; that it ceases with it, and the Plaintiff, Locke, must have himself considered this as annexed to the estate which passed with it from Merrill to him, otherwise it is a mere chose in action, and incapable of an assignment, and if so, the action cannot be sustained in his name; and it appears to me, that it would he doing violence to the acts and intention of the parties, as well as contravening the rules of Law, to construe this a mere personal covenant; it is plain, from the face of the deed, that some interest in the lands was recognised in Springs, Harris, and M’Coy, in right of their wives ; and it is quite evident that the parties intended to pass that interest ; and that interest passing, the Alexanders were willing to bind themselves personally that Merrill should quietly enjoy the land; for they had no fears that ho would be disturbed by any other title, or were willing to risk the others. Now to bind them to defend against a title which all parties thought the deed had vested in Merrill, would be contrary to every principle of justice. These, among other reasons, should induce the Court to lean in favor of construing it a dependent, and not an independent covenant. . But at any event, I- think the charge wrong «pon the question of interest. Mesne profits, during the en joyment under a defective title, is not set off against the claim of interest upon the purchase money, because the possessor is liable to the rightful owner for them.; they are therefore left in his hands for that purpose: but when it appears that the possessor has enjoyed the lands, and cannot be called to account for the mesne profits, the reason of the rule ceases, and th,e rule no longer applies, and the mesne profits shall be set off. Interest is in most cases an equitable demand, and is left to the sound' discretion of the Court, but in this case it may be resisted without recourse to that maxim. It appears by the case, the Alexanders had from Springs and Harris, a power of attorney, executed to sell or transact any business in relation to these lands only; among other things, that the attorney contracted with Merrill for the sale of the lands, received his money, and put him in possession, where he remained unmolested by Springs and Harris during their lives; after their deaths, the wives ousted him ; they were entitled to the mesne profits only from the deaths of their respective husbands they had no claim to those which arose during the coverture, they belonged to the husbands. The mesne profits could not be left in Merrill’s hands to satisfy theiif claim for them, for they had none; the husbands could have none, for Merrill was placed by act of their agents duly authorised, and they had received Merrill’s money; he was there by their consent, and could not be charged as a trespasser. Nor was he liable for use and occupation, there being no contract for that, either express or implied — (See the case of O’Neal v. Holcom, decided in this Court about four years ago.) Nor can I perceive in what form of action, or upon what principle, Merrill could be subjected by the executors of the husbands. 1 mean not to express any opinion where the possessor is protected in the enjoyment of the mesne profits, by the statute of limitations, or any collateral defence. I therefore think the presiding Judge erred in directing the Jury to give interest upon the whole of the purchase money from,the time of its receipt $ the Defendants are not subject to the interest of two-fifths of the purchase money, until after the deaths qL Springs and Harris, respectively. Let a new trial, therefore, be granted.

IIaxt,, Judge, concurred.

Tayxok, Chief-Justice.

I concur for making absolute (he rule for a new trial, on the score of damages. I desire to be understood as giving no opinion on the effect of the covenant generally.

Vide past. Yol. 2, page 155 — S. C.  