
    *Cromwell v. Tate's Ex'or.
    February, 1836,
    Richmond.
    (Absent Cabell, J.)
    Scrolls — Failure to Recognize in Body of Instrument-Effect. — A contract In writing has a scroll annexed, opposite the signature, and the word seal is written in the scroll, but in the body of the instrument there is no recognition of the scroll as a seal: Held, the instrument is no deed, but a simple contract only.
    Debt, in the circuit court of Jefferson, by Tate’s executor against Cromwell, for 101 dollars with interest from the 1st December 1808, alleged in the declaration to be due by bond sealed with Cromwell’s seal, whereof profert was made. Cromwell pleaded payment.
    At the trial of the issue on that plea, the plaintiff offered in evidence an instrument signed by Cromwell, with a scroll opposite to his signature, in which there was written the word seal, in the following words:
    “On demand, I obligate myself my heirs &c. to pay unto W. Tate, guardian of J. Strother, one hundred and one dollars with interest from the 1st December 1808. As-sumpsit for Pendleton.
    Stephen Cromwell [Seal.]”
    The defendant objected to the reading of this paper in evidence to the jury, because the instrument in the declaration mentioned was declared on as a deed sealed by the defendant, and the paper offered in evidence did not appear from any thing in the body thereof to be a sealed instrument, or so intended to be. But the court said, that it did not find in the body of this instrument, the expression, “Witness my hand,” which occurred in all the cases decided by the court of appeals on the point, and seemed,-in those cases, to be relied on as a material circumstance to prove the intent of the parties, and that it was unwilling to extend the principle beyond *the letter of the adjudged cases; and therefore the court overruled the objection and admitted the evidence; to which the defendant excepted.
    Verdict and judgment for the plaintiff; from which the defendant appealed to this court.
    Faulkner, for the appellant,
    cited Baird v. Blaigrove, 1 Wash. 170; Austin’s adm’r v. Whitlock’s ex’or, 1 Munf. 487; Anderson v. Bullock, 4 Munf. 442; Jenkins v. Hurt, 2 Rand. 446; Peasley v. Boatwright, 2 Leigh 195, and Turberville v. Bernard, decided in 1833, in all of which cases this court decided that to make a scroll a good seal, it must be recognized as such in the body of the instrument. He also referred to Warren v. Lynch, 5 Johns. Rep. 239. He observed, further, that in England the putting a seal opposite the signature did not necessarily make a deed. Clement v. Gunhouse, 5 Esp. 83; 7 Petersd. Abr. Deeds, H. p. 656.
    *Johnson, contra,
    said, that he had, in the argument of Tuberville v. Bernard, examined all the cases previously decided, and shewn, that the court had not in any one of them adverted to the consideration, that the recognition of the seal in the body of an instrument was wholly unimportant and that the clause in cujus rei testimonium sigillum apposui was matter of form, not of substance. He had shewn, that this was undoubtedly the doctrine of the common law; Shep. Touchs. 5b, 56; Goddard’s case, 2 Co. 5. And then he submitted, that, seeing that a seal of wax put to an instrument need not be recognized in the body of it, there was no reason for holding that the statutory seal of a scroll should be recognized in the body of the instrument, in order to constitute it a deed. The court, however, in Turberville v. Bernard, decided the point against him. But the present case was different from all the others (except Turberville v. Bernard) in the particular noticed by the circuit court; namely, that, in those other cases, the intent was apparent upon the face of the instrument to execute a simple contract ; for the instrument concluded with the words “witness our hands,” which was the usual and appropriate conclusion of a simple contract in writing: whereas here, nothing appeared in the body of the instrument to indicate that a simple contract was intended. The paper was sealed by a scroll in which the word seal was written ; and its character should be ascertained by the fact of the seal put to it, as a like paper sealed with wax, without the seal being recognized in the body of the instrument, would be determined by the fact, to be a deed. In Clements v. Gunhouse, a paper was produced signed by several parties, with seals opposite to their names; but the court inferred from the expression in the body of the instrument “to which the parties have set their hands,” that a sealed instrument was not intended, and that therefore it was not a deed. But if that indication of intent had been "^wanting in the body of the instrument, it must have been held a deed.
    
      
      Scrolls — Failure to Recognize in Body of Writing — Effect. — On this question, the principal case is cited in Clegg v. Lemessurier, 15 Gratt. 112, 114, 116, 117, 120, and foot-note; Parks v. Hewlett, 9 Leigh 516, 519, and foot-note; Bradley Salt Co. v. Norfolk, etc., Co., 95 Va. 462, 28 S. E. Rep. 567: Keller v. McHuffman, 15 W. Va. 78; note in III Va. Law Reg. 282. See further, monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564; “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
      Conveyance of Land — Deed.—A deed of an individual will not pass land without seal. Jarrett v. Stevens, 36 W. Va. 449, 15 S. E. Rep. 178, citing Cromwell v. Tate, 7 Leigh 301; Pratt v. Clemens, 4 W. Va. 443; 2 Min. Inst. 651. The principal case is also cited on this point in Adams v. Medsker, 25 W. Va. 181. See monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
    
    
      
      In Turberville v. Bernard, a question arose whether a paper was to be considered a deed, which was in the following words and form:
      "Memorandum, this 20th December 1817, full satisfaction has been received from John Corbin, administrator with the will annexed of J. Burwell deceased, for a claim of £4965. with interest thereon from the 7th February 1809; which said sum of money was due from the said Burwell, for the purchase of The Folly and Sandford’s” [lands so called] "from W. Clements and Lucy his wife, for their interest of two thirds of said estates. This satisfaction has been received, by taking a new assurance from J, Corbin administrator and dev-isee of said Burwell, with W. Settle and F. Tebbs his sureties joining in the said assurance, bearing even date with these presents. The said W. Settle and F. Tebbs are discharged from all claim as sureties for the administration of John Corbin, or as sureties of the said John from all claims against them personally.
      W. L. L. Clements, [Seal.]
      J. T. Lomax, for [Seal.]” Mary Clements,
      And this court, after full argument of the point at the bar, held that the paper was not a sealed instrument, but only a simple contract. — Note in Original Edition.
    
   TUCKER, P.

In this case the question is distinctly presented, whether a scroll must be recognized as a seal in the body of the instrument in order to constitute it a deed.

At common law and in early times, I have little doubt, that a seal meant an impression made on wax, or other thing which would receive and retain an impression ; for seals were introduced by the Normans, it is said, and used in fact as a signature, at a time when each man had his signet, and a certain coat of arms or engraving upon it designated the individual. 3 Bac. Abr. 164. Lord Coke says, a seal is wax with an impression. When this was the case, the question of seal or no seal, deed or no deed, was matter to be decided by inspection. And, accordingly, he who declared upon a deed made profert of it, that the court might see that it was a good deed; and, in like manner, he who pleaded a deed made profert of it in his plea, with the same view. 5 Bac. Abr. 432; 6 Co. 36; 10 Co. 92b. The inspection was sufficient to establish whether the instrument was a deed; but even when that appeared, the question next presented was, whether it was or was not the deed of the party sought to be charged. If not, he denied it by the plea of non est factum, and that plea was tried of necessity upon proofs dehors the deed.

In process of time, other materials than wax were used, but the impression seems still to have been considered as important, and its existence was still to be tried by inspection. But, at length, among us at least, a scroll seems to have been habitually used as a seal, even anteriour to our statute on the subject, and was accordingly recognized as such, in the cases of Jones v. Logwood, 1 Wash. 42, and Baird v. Blaigrove, Id. 107. Still, however, the question of seal or no seal, deed or *no deed, was properly to be tried by the court upon inspection. If the defendant denied that the instrument declared on was a deed, he might crave oyer and demur; and then the question was directly submitted to the court. If the plaintiff declares upon a deed, and upon the trial the defendant objects for variance that the paper produced is no deed, the court decides the question by inspection. The existence or non-existence of the seal is to be ascertained by an appeal to the senses; and where that is the case, the judges of the court shall upon the testimony of their own senses decide the point in dispute. 3 Black. Comm. 331; 6 Bac. Abr. 631. Hence, we find Mr. Marshall, in the case of Baird v. Blaigrove, asserting that the fact of the instrument being sealed was to be decided by the court. In this I think he was clearly right, although upon the plea of non est factum the fact of seal or no seal might also be tried by the jury.

Whether the instrument however was sealed or not, did not, at common law, it seems, - depend at all upon the recognition of the seal in the body of the deed. For the clause in cujus rei testimonium, including the allegation that the instrument was sealed by the parties, was not at common law deemed essential to the validity of the deed, or the proof of the sealing. 3 Bac. Abr. 163; Shep. Touch. 55; 2 Co. 5, a. The existence of the seal was proved by itself, and whether it was the seal of the party or not, was to be established by witnesses, and tried by the jury on the plea of non est factum. Indeed, when the deed was not signed, as was common in early times, the clause of recognition could be of no importance, since the fact of sealing was necessary to be proved, in order first to establish the recognition, and when the fact of sealing was once proved, the recognition was no longer of any importance.

Proceeding then upon common law principles, and untrammelled by former decisions of our courts, I should *say, that an instrument to which a scroll was affixed, was a deed, whether the scroll was recognized as a seal in the body of the instrument or not; and that the defendant must plead non est factum if he denies the scroll to be his. To the same conclusion I should come in construing our statute, since it must be considered as having been enacted in reference to common law doctrines.

But the decisions of our courts have been too frequent the other way, to justify a departure from them now. In Baird v. Blaigrove, more than 42 years ago, the recognition of the scroll as a seal in the body of the instrument, seems to have been considered as necessary. This too appears to me to be the case in Austin v. Whitlock, Anderson v. Bullock, and Peasley v. Boatwright. And the same opinion, I understand, was held by this court in the case of Turberville v. Bernard. The impression that such is now the law, is very general. To reverse the course of the court, and to declare those instruments to be deeds which have a scroll affixed without recognition in the body of the instrument, would be very mischievous. It might give rise to many writs of error, affect the decision of many suits now depending and prosecuted upon the faith of former adjudications, and might moreover produce devastavits in the case of executors, who have treated as simple contracts, instruments that fall within that description according to the principles of the cases heretofore decided. I cannot therefore consent to overrule them.

Nor do I think it desirable to restore the common law doctrine. The omission of the clause in cujus reites timonium admits, I think, of gross abuses. They are alluded to by judge Tucker in his opinion in the case of Austin v. Whitlock. The facility with which a seal of wax or a scroll may be fraudulently affixed to the name of the party, and the character of the instrument thereby entirely changed, affords an unanswerable argument in favour *of requiring the recognition of the seal in the body of the instrument. As the addition of the. seal may create a lien on the realty; as it operates an estoppel, and concludes the party from denying the consideration or questioning the facts set forth in the instrument; as it elevates the contract to the dignity of a specialty in the distribution of assets; as it excludes the protection of the act of limitations; as it is so easy to add a seal fraudulently, without risque of detection; and as the proof of handwriting, in the absence of subscribing witnesses, is considered sufficient proof of sealing and delivery, I think it wise to require a recognition of the seal by the instrument itself, instead of trusting the proof of so important fact to the slippery memory of witnesses. Constituting, as the fact of sealing does, a part of the very contract itself, creating by its annexation to the signature, stipulations and terms which, without it, would not arise out of its language, there is every motive for requiring that the recognition of it should be found in that writing, which contains all the other .terms and stipulations between the parties to the contract. Thus, it is conceded that heirs are not bound, unless named in the instrument; and even though named, they are not bound unless there be a seal. If, then, the obligation upon them must be set forth in the written stipulations of the instrument itself, it would, seem to follow, that every thing which is. an essential to the completion of that obligation must be there set forth ; and as sealing is an essential, the sealing should be set forth, or recognized in the body of the instrument. It is, indeed, contrary to the analogies and principles of the law, that an essential term or stipulation of a written contract, should be made to depend, wholly upon testimony dehors the instrument.

Upon the whole, therefore, I think it is no subject of regret, that the rule of recognition has been established. I shall only add, that I do not think the word seal written *in the scroll amounts. to the required recognition. The recognition, if required at all, ought to be express, and not left to vague inference; for otherwise no man could be certain as to the nature and character of the contract he holds, and no counsel could be certain in what manner it should be treated when he brings suit upon it.

The other judges concurred. Judgment reversed. 
      
      Cabell. J., was not present at the argument (being sick at the time) and therefore did not sit at the decision; but£e authorized the reporter to state, that he had considered the point, and concurred in the opinion of the president. — Note in Original Edition.
     