
    Martin v. Flowers.
    March, 1837,
    Richmond.
    (Absent Tucker, P.)
    Deeds — Execution by Attorney — Case at Bar, — A deed for the conveyance of land, purporting- to be made-by A. attorney In fact for B. witnesses “that the said attorney in fact, A. for and in consideration &c. doth release and quitclaim &c.” and concludes, “in testimony whereof the said B. hath hereunto set his hand and seal,” but is signed with the name of A. (not styled attorney) a scroll being annexed to the signature: Held, this is not the deed of B. and does not convey his title to the land.
    Pretensed Title — Conveyance of — Case at Bar. — where land is sold and conveyed, and subsequently, an adversary claim being set up by a third person, the vendor repays the purchase money to the vendee, and receives a reconveyance of the land, the transaction is not in violation of the act against conveying or taking pretensed titles: per Cabbm, and Bbockenbbotjsh, J.
    On the 10th of July 1786, Eambert Flowers, being entitled to 400 acres of land in Monongalia (now Harrison; county, under a certificate granted by the commissioners for adjusting titles to unpatented lands, assigned his interest therein to Charles Hughley; who, ^having caused a survey to be made of a tract ■containing1 304 acres, obtained a patent for the same on the 19th of March 1789. On the 10th'of October following, a patent wás issued to Charles Martin for 400 acres in the ■same county; which included the greater part of the land previously granted to Hughley. Charles Martin dying not long afterwards, devised the tract of 400 acres to his son Spencer Martin. Under this devise, Spencer Martin claimed the whole tract, and actually cleared and improved a part; but that part did not interfere with Hughley’s patent, nor (as it seemed) did Spencer Martin ever have the actual possession of any of the land which had been granted to Hughley, until within a short time previous to the institution of this suit. Meanwhile Hughley had left the state and become a resident of Kentucky ; where, hearing of the adverse claim to a part of the land included in his patent, he executed a deed constituting Alexander Hughley his attorney to sue for and recover the land, or to sell the same, or to make any compromise respecting it which he might deem expedient. This power of attorney bears date the 3d of October 1818. Alexander Hughley, as attorney in fact for Charles Hughley, entered into an agreement with Flowers, by which the land patented to Hughley was to be conveyed to Flowers, and Flowers was to refund the purchase money he had received from Hughley for the assignment of his claim under the certificate of the commissioners, ■with interest thereon, and the expenses of surveying and patenting the land. In pursuance of this agreement (which was in substance a rescission of the contract made in 1786 between the parties, and was so considered by the court of appeals) Flowers paid the amount of the- said purchase monej’, interest and expenses to Alexander Hughley, and received from him a deed for the land, bearing date the 17th of October 1818. This deed purports to be an indenture between Alexander Hughley attorney in *fact for Charles Hughley, of the one part, and Lambert Flowers of the other part; witnessing, “that the said attorney in fact, Alexander Hughley, in consideration of 120 dollars, doth release and to the said Lambert Flowers doth quitclaim” the same tract of 304 acres which was patented to Charles Hughley; and concluding, “In testimony whereof the aforesaid Charles Hughley hath hereunto set his hand and seal.” The signature, however, is “Alexander Hughley;” to which a scroll is annexed by way of seal. The deed was recorded on the 15th of March 1819, in the county court of Harrison; and moreover, Spencer Martin had actual notice of the deed, and of the agreement in pursuance of which it was executed. Nevertheless he procured from Charles Hughley a conveyance of the same tract of land which had been sold to Flowers by Alexander Hughley ; and this conveyance, dated the 6th of July 1821, and purporting to be made in consideration of 80 dollars paid by Martin, was also recorded in Harrison county court.
    In December 1821, Flowers exhibited a bill in the superiour court of chancery holden at Clarksburg, against Spencer I Martin, Charles Hughley and Alexander Hughley, setting forth the above facts; charging that Martin had full notice of plaintiff’s purchase of the land from Alexander Hughley the attorney in fact of Charles Hughley, and had fraudulently combined with Charles Hughley to defeat the plaintiff’s recovery thereof, by procuring a conveyance from the said Charles Hughley, and taking and maintaining possession : and praying a decree for the recovery of the land or the value thereof, and general relief.
    Charles Hughley and Alexander Hughley failed to answer the bill, and as to them it was taken pro confesso.
    Martin answered, denying notice of the plaintiff’s prior purchase of the land ; denying the fraud charged in the bill; insisting that he had a right to secure his title by the purchase of Hughley’s interest; and contending *that by the plaintiff’s own shewing, he was the purchaser of a pretensed title.
    In May 1827 the cause came on to be heard; and the chancellor decreed that Martin convey, relinquish and release to the plaintiff the land in controversy, or so much thereof as he held at the commencement of the suit; that he be attached by his body until he should comply with the order; and that the marshal deliver possession of the land to the plaintiff. Martin appealed from the decree.
    Johnson, for appellant.
    W. Robertson, for appellee.
    
      
       Deeds — Execution by Attorney. — By statute (Va. Code, 1849, ch. 116, § 3, p. 500; Code 1887, § 2416), it is enacted, “If, in a deed made by one as attorney in fact for another, the words of conveyance or the signature be in the name of the attorney, it shall be as much the principal's deed as if the words of conveyance or the signature were in the name of the principal by the attorney, if it be manifest on the face of the deed that it should be construed to be that of the principal to give effect to its intent.”
      In Stinchcomb v. Marsh. 15 Gratt. 210. Lee, J., who delivered the opinion of the court, in discussing the question as to what constituted a due execution of a deed by attorney, prior to the statute above cited, said: “ Prior to the Code at least, the question was not simply what the grantor intended to do, but whether the intent to execute the power was carried out in a legal and proper manner. In every case of a deed executed by an attorney it might be supposed that he intended to conform to-his power and satisfy its requirements; but if he have failed to execute it in the manner required by the rules of law, it must be ineffectual, for his intention could not remedy the defective Code in which he attempted to carry his intention into-execution. I refer on this subject, to Sergeant Moore’s Rep. Trin. 6 Eliz. No. 191, p. 70; Coombe’s Case, 9 Rep. 75; Frontin v. Small, 1 Str. R. 705; S. C., 2 Ld. Raym. R. 1418; white v. Cuyler, 6 T. R. 176; Wilks v. Back, 2 East. R. 142; 5 Bouv. Bac. Ab. ‘Leases,’ I. 10, p. 571; Bogart v. De Bussy, 6 Johns. R. 94; Fowler v. Shearer. 7 Mass. R. 14; Elwell v. Shaw, 16 Mass. R. 42; Jones’ Dev. v. Carter, 4 Hen. & Munf. 184; Clark’s Lessee v. Courtney, etc., 5 Peters’ R. 318. 349; Martin v. Flowers, 8 Leigh 158. In the two cases last cited, the deeds were held inoperative because although purporting to be made by the parties as attorneys for their principals, they were yet executed by the attorneys in their own names and not in those of their principals.”
      See further, on this subject, monographic note on “ Deeds ” appended to Fiott v. Com., 12 Gratt. 564.
    
    
      
       Pretensed Titles — Conveyance of. — See Waggener v. Dyer, 11 Leigh 384.
    
   CABELL, J.

Two objections are made to this decree. The first is that the court of chancery had no jurisdiction of the case; that if the appellee has any title to the land in controversy, it is a legal title, which ought to be enforced in a court of law.

The validity of this objection depends upon the force of the deed of the 17th of October 1818, executed by Alexander Hugh-ley to Lambert Flowers. If it did not convey the legal title of Charles Hughley, the objection is without foundation.

That deed purports to be a deed “between Alexander Hughley, attorney in fact for Charles Hughley, of the one part, and Lambert Flowers of the other part. ’ ’ It witnesseth “that the said attorney in fact, Alexander Hughley, for and in consideration &c. doth release &c.” and concludes, “In testimony whereof the said Charles Hughley ■ hath hereunto set his hand and seal.” It is then signed by “Alexander Hughley,” with a scroll annexed by way of seal.

The legal title to land cannot pass from him who has it, but by his deed. Such deed may be executed by his attorney duly authorized for the purpose. But it must be so executed as to be the deed of the principal. It *is not sufficient, therefore, that it shall be executed by the person who was authorized to make it; but it must be done by him as attorney. For this purpose it is necessary that the attorney shall either sign the name of the principal, with a seal annexed, stating it to be done by him as attorney for the principal ; or he may sign his own name, with a seal annexed, stating it to be for the principal. In either" of these forms, the deed becomes the deed of the principal; and if every thing else be correct, it conveys the title of the principal. But if the deed be signed and sealed by the attorney, neither in the name of the principal, nor in his own name as attorney for the principal, it is not the deed of the principal. This was decided as early as the 6th year of the reign of queen Elizabeth (Moore’s Rep. 70), and has been uniformly recognized ever since. Combes’s case, 9 Co. Rep. 75; 4 Bac. Abr. Leases, I. pi. 10, p. 140; Frontin v. Small, 2 Ld. Raym. 1418; White v. Cuyler, 6 Term Rep. 176. Similar decisions have been made in the courts of Massachusetts and of New York, and also in the supreme court of the United States. I would refer particularly to the case of Lessee of Clarke et al. v. Courtney et al., 5 Peters 349.

The deed in this case, having been signed and sealed in the individual name of Alexander Hughley, is not the deed of Charles Hughley, and therefore did not convey his title to the land.

But although the deed did not pass the legal title, it is evidence of a contract on the part of Charles Hughley, by his attorney, to convey the land to the appellee, and gives an equitable right to call for the legal title. And as the subsequent conveyance of the land, by'Charles Hughley to Martin, was made with full knowledge on the part of Martin of the previous contract with Flowers, it cannot impair the equity of Flowers.

It is contended however, in the second place, that this contract was in violation of the act against conveying *or taking pretensed titles, 1 Rev. Code, ch. 103, p. 37S. I cannot think so. Flowers and Hughley, before this contract, held towards each other the relation of vendor and vendee; for Flowers had previously sold the land to .Hughley. When Martin set up an adversary claim to a part of the land, under his patent. Flowers apprehended that in case Hughley should lose any portion of the land, an effort would be made to make him liable for it. Thus situated, it was proposed that he should take back the land, repaying the purchase money, interest and costs, and probably some small amount in addition. These terms were acceded to; and although, in executing them, it became necessary to take a conveyance from Hughley, the transaction was, in substance, a rescission of a former sale, rather than the purchase of a pretensed title. It did not tend to increase or encourage litigation; for, if the purchase had not been rescinded, Hughley would have sued Martin, or Martin would have sued Hughley; in either of which cases Flowers would have been substantially a party, in consequence of his obligation to defend the title of Hughley; and if Martin had been successful in that controversy, it would have been the ground of another suit by Hughley against Flowers. Whereas, under the new arrangement, Flowers became the nominal as well as the substantial party, and one suit terminates the whole controversy.

I am of opinion to affirm the decree.

BROOKE, J.

Upon the authorities, I concur in the opinion that the deed from Hughley to Flowers did not convey the legal title: and am for affirming the decree.

BROCKENBROUGH, J.

I concur entirely in the opinion delivered by judge Cabell.

Decree affirmed.  