
    Norris v. Dains.
    
      Conveyance by corporation — Mode of execution.
    
    Where an assignment of lease, in the granting clause, purports to be made in the name of a person who is therein described as the treasurer of an incorporated company, and such named person, as treasurer of and in behalf of such cdmpany, sets his hand and the seal of the company to the instrument, the assignment will not be held to be the act of the company.
    (Decided December 18, 1894.)
    E RROR to the Circuit Court of Meigs county.
    The original action was in ejectment, brought by the plaintiff in error, George W. Norris, against the defendant in error, Dennis Dains, in the court of common pleas of Meigs county, to recover possession of a tract of land containing eighty-three acres, more or less, situate in said county. Among other defenses the defendant denied that the plaintiff, Norris, was seized of the real estate described in the petition as therein set forth, and, also, that he was entitled to the possession thereof..
    On the trial before a jury, the plaintiff, to maintain the issue on his part, and to show title in himself, offered in evidence what purported to be an original assignment and transfer by the Scipio Iron and Coal Mining company (a corporation duty-organized) to said George W. Norris, of a certain lease for the full term of ninety-nine years, made by Isaac Samuels to John P. Augustus, and by said Augustus assigned and transferred to the said Scipio Iron and Coal Mining company, and which lease included and covered the land described in the plaintiff’s petition. To the admission in evidence of said assignment by the Scipio Iron and Coal Mining company, the defendant objected; the court sustained the objection, ruled out said testimony, and refused to let the same go to the jury, to which ruling the plaintiff at the time excepted.
    A certified copy of said assignment by the Scipio Iron and Coal Mining company from the records of deeds of Meigs county, and a certified copy of the • same assignment from said records attached as an exhibit to sundry depositions taken by the plaiptiff, were also offered in evidence by the plaintiff, and objected to by the defendant. The court sustained the objection; the testimony was excluded from the jury, and the ruling of the court was, at the time, excepted to by the plain - tiff.
    The following is a copy of the instrument purporting to be an assignment of said lease by the Scipio Iron and Coal Mining company to said George W. Norris:
    
      “Know all men by these presents, That I, George F. Baker, treasurer of the Scipio Iron and Coal Mining companjr, by virtue of the power in me invested by virtue of the vote of directors of said company (a copy of which is hereto annexed), and in consideration of one dollar and other good and valuable considerations to me paid by Georg-e W. Norris, of Chelsea, in the county of Suffolk and Commonwealth of Massachusetts, do hereby sell, assign, transfer, set over and convey unto the said Norris, his heirs and assigns, the foregoing lease and all the right, title or interest which said, company have in, to or under the same, and any and all rights which they may have upon the premises therein described and the covenants therein contained. To have and to hold the same to the said George W. Norris his heirs and assigns, to his and their use and behoof forever, subject to the conditions therein contained, reserving to said company the right to work and mine the same for iron and coal.
    “ In witness whereof,\ I, the said George F. Baker, treasurer as aforesaid, in behalf of said company have hereunto set my hand and the seal of said company this eighth day of November in the year of our Lord one thousand eight hundred and sixty-four.
    “George F. Baker,
    
      ‘ ‘ Treas. of the Seipio Iron and Coal Mining Co. e ‘ In the presence of
    John F. Augustus,
    Jos. Nickerson.”
    Seal.
    Vote op the Directors at a Meeting Held October 31, 1864.
    “It was voted that the company lease to George W. Norris their property in Ohio for the unex= pired term of their lease, subject to the conditions and restrictions therein contained, reserving to the company the right to work and mine the same for iron and coal, and the treasurer is hereby authorized and empowered to execute any and all assignments, deeds, and leases or instruments which it may be necessary to execute in order to perfect the title of said Norris to the same.
    
      “A true copy of a vote passed at a meeting of the directors of said company at their meeting held October 31, 1864.
    
      “Attest: Geo. F. Baker, Glerh. Í Scipio Iron and Coal) Seal. •< Mining Company. > ( Organized 1864. )
    
      Commonwealth of Massachusetts, ) -»T Suffolk County, ss. ’ f Nov, 1864.
    “Then personally appeared George F. Baker, who executed the foregoing instrument and acknowledged the same to be his free act and deed and the free act and deed of said company before me.
    “Jos. Nickerson,
    “ Justice of the Peace.”
    
    The case having been submitted to the jury, a verdict was returned in favor of the defendant, and judgment was rendered in accordance with the verdict. The circuit court affirmed the judgment, and this court is asked to reverse the judgment of the circuit court.
    
      F. C. Russell, for plaintiff in error.
    This assignment purported to have been executed on behalf of the Scipio Iron and Coal Mining’ company, and signed by George F. Baker, treasurer of the Scipio Iron and Coal Mining company, with the seal of the company attached thereto. Did this make out a prima, facie case? We think it did. The attaching of the seal of the company corporation would be sufficient for that purpose. Angel & Ames on Corps., sections 224, 225; Donnally et al. v. Walsh, 3 Johns, 226; Tenny v. East Warren Lumber Co., 43 N. H., 343; Burrill v. Nahant Bank, 2 Metc., 163; Kinzie v. Trustees 
      
      of Chicago, 2 Scam., 187; Murphy v. Welsh, 123 Mass., 489; Haven v. Adams, 4 Allen, 80; Hutchins et al. v. Burns et al., 9 Gray, 367; Sheehan et al. v. Davis, 17 Ohio St., 571; Leggett et al. v. Manufacturing Co., et al., 23 Am. Dec., 728; Kaehler v. Black River Falls Iron Co., 2 Black (U. S.), 715; Miners Ditch Co. v. Zellerback, 99 Am. Dec., 300.
    But, it may be claimed that this assignment offered and rejected did not purport to be, and was not in .fact, the assignment of the company. From the whole instrument it clearly appears that it was the assignment of the company and not the individual assignment of George F. Baker, and •the whole instrument must be looked at. Kelly v. Calhoun, 95 U. S., 710; Flint v. Clinton Company, 12 N. H., 430; Tenny v. Fast Warren Lumber Co., 43 N. H., 343; Magill v. Hinsdale et al., 6 Conn., 464; Vilas v. Reynolds, 6 Wis., 214; Sheehan v. Davis, 17 Ohio St., 571; Haven et al., v. Adams, 4 Allen, 80.
    The statutes of Ohio, section 4111, provide that all deeds, mortgages, powers of attorney and other instruments of writing for the conveyance or incumbrance of lands, tenements or hereditaments situate within this state, executed and acknowledged or proved in any other state, territory or country or in conformity with the laws of this state, shall be as valid as if executed within this state in conformity with the foregoing provisions of this chapter.
    If the assignment of the said lease was executed according to the laws of Ohio,, or the laws of the state of Massachusetts, it is valid and conveys the estate. 17 Ohio St., 571.
    It was executed in such manner as to be a good and valid conveyance or assignment under the laws of Massachusetts. 9 Allen, 80; 9 Gray, 367; 123 Mass., 489.
    
      Grosvenor & Vorhes and E. A. Guthrie, for defendant in error.
    It requires no extended argument to show that the assignment of the lease was no assignment whatever. It was made without authority so far as the treasurer was concerned, and there is no evidence offered that he was competent under the laws of Massachusetts to make such an assignment, and the court properly held that assignment absolutely void and as if it had never been made.
    The action of the directors,’ on the 31st of October, 1864, voting to lease their property does not help out this defective execution of their purpose. The court will notice that the transcript of the record of the directors authorizing the lease, and which was made by George F. Baker, as treasurer, is also certified by George F. Baker as clerk, showing the real fraudulent character of the whole transaction.
    There were three items of evidence offered which were excluded by the court below. They all stand on similar footing. If any one of them, however, was incompetent, the case of the plaintiff below failed, and the whole question now is, was the act, or attempt to act, as set out in exhibits ££C,” ££D,” and £<E, ” the act of the Scipio Iron and Coal Mining Company? That is all there is in it.
    We claim that the act of Baker was not the act of the corporation, and indeed that the corporation, has not acted at all and did not act. The au-i thority in the "first place was a vote of the directors. It does not appear that the directors had any power to authorize the lease of this corporation’s property. It was real estate. And not only so but they did not authorize a transfer of this lease. They authorized another lease to be made. There is a vast difference, and this authority must be strictly construed and strictly complied with. What right has an individual, having put his hand xto a document, to take the corporate seal of some corporation which he is trying to act for and use it? That is the whole thing. 17 Ohio St., 581; Elwell v. Shaw, 16 Mass., 42.
    Now, coming to the question as to whether this was a legal assignment or not, we will cite the same case which has already been cited by learned counsel on the other side, that of Hutchins v. Byrnes, 9 Gray, 267. There the corporation attempted to act and did act through their treasurer, and the argument was made that inasmuch as the corporation purported to act and inasmuch as the corporation seal was affixed, it was a good conveyance. The corporation gives, grants, bargains and sells, or the corporation hereby assigns, etc. But not only is this statement wholly obscure in this case but Mr. Baker does not assume to do it. He makes no attempt to make the corporation act, but he acts. He says that he, and he describes himself as the treasurer of the Scipio Iron and Coal Mining Company, a mere description of the person, “(I) do hereby sell, assign, 'transfer and convey the foregoing lease,” and he did not do anything of the kind so far as the corporation is concerned. Under the head of Deeds in the Am. ds Eng. Ency. of Law is the following: “But the general rule is that the names of both the principal and the agent must arppear in the signature,” and cites the cases of Elwell v. Shaw, 16 Mass., 42; Wood v. Goodridge, 6 Cush., 117; Thurman v. Cameron, 24 Wenden, 90.
    In Maine it is held that the principal’s name need not appear in the signature, if it appears in the recitals that he is the grantor. Inhabitants v. Clark, 68 Me., 87.
    The proper mode of signing’ is A (principal) by B (agent); and there are some authorities which hold that no other signature will be a good execution. But the better opinion is that, where the deed purports in terms to be the act of the principal, and the signature is B (agent) for A (principal ), or B as the attorney of A, and the like, it will be a valid execution. Wilkes v. Black, 2 East., 142; Mussey v. Scott, 7 Cush., 216.
    Now, in his case there is no pretense that it is the act of the corporation. So we stand upon two propositions and either one is fatal to the plaintiff in error. First — The power to Baker, which must be strictly construed, was not to assign a lease but was to make a new lease. Second — The corporation did not make any assignment whatever.
   Dickman, C. J.

The record shows that on April 25, 1864, Isaac Samuels, of Boston, in the state of Massachusetts, leased to John P. Augustus, a tract of land situate in Meigs county and state of Ohio, for a term of ninety-nine years. The lease was afterwards, on May 12, 1864, assigned by the lessee to the Scipio Iron and Coal Mining Company, a corporation duly organized, its successors and assigns, for the full term of the demise. On November 8, 1864, an instrument of writing was executed in the commonwealth of Massachusetts, purporting to be an assignment of this lease by the Scipio Iron and Coal Mining Company, through George F. Baker as its treasurer, to George W. Norris the plaintiff in error.

The only question presented for our consideration is, whether the court of common pleas. erred in excluding from the jury as testimony, the assignment claimed to have been made by the Scipio Iron and Coal Mining Company to George W. Norris, which was offered in evidence at the trial by the plaintiff. In other words, was the assignment in question the act of the Scipio Iron and Coal Mining Company?

It appears from a copy of the vote written under the assignment by the company, that at a directors’ meeting''1 held October 31, 1864, it was voted, that the company lease to George W. Norris their property in Ohio, for the unexpired term of their lease; and the treasurer of the company was authorized to execute any instruments which might be necessary in order to perfect the title of Norris to the same. We do not deem it necssary to consider how far the instrument executed by George F. Baker, as treasurer, though containing words of assignment, may, by virtue of its reservations, be construed as not conflicting with the authority given to lease. Suffice it that in the body.of the instrument it is not the company that is made to assign the lease, but George F. Baker with the descriptio personce of treasurer. The language of the instrument is : “I, George F. Baker, treasurer of the Scipio Iron and Coal Mining Company, * * * do hereby sell, assign, transfer, set-over and convey unto the said Norris, his heirs and assigns, the foregoing lease,’’etc. And in executing the assignment, it is “George F. Baker, treasurer as aforesaid in behalf of said company,” who sets his hand and seal of the company.

By section 4111, of the Revised Statutes of Ohio, it is provided: “All deeds, mortgages, powers of attorney, and other instruments of writing for the conveyance or incumbrance of lands, tenements, or hereditaments situate within this state, executed and acknowledged, or proved, in any other state, territory, or country, in conformity with the laws of such state, territory, or country, or in conformity with the laws of this state, shall be as valid as if executed within this state, in conformity with the foregoing provisions of this chapter.”

As the record discloses no proof of the law of Massachusetts as to whether the assignment by the Scipio Iron and Coal Mining Company was executed in conformity thereto, it is to be presumed that in that regard the law of Massachusetts is the same as our own. But, in the absence of such proof, we may have recourse to the decisions of that state, in aid of determining the principles of the common law which should govern, as to the mode of executing' deeds or other instruments of conveyance through the medium of an ag'ent or attorney.

It must be conceded that in respect to the manner in which a deed must be executed by an agent, the law is extremely technical; and yet, in view of preserving the stability of judicial decisions, the rule sta/re clecisis is not to be ignored. In the early leading case of Combes’, 9 Co. 76, it is explicitly said: “When any one has authority, 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 acfc, but in the name, and as the act, of him who gives the authority. ’ ’ This doctrine has been frequently recognized as law by the English courts, and it has also received the approval of the Supreme Court of Massachusetts.

In Elwell v. Shaw, 16 Mass., 42, it was said by Wilde, J.: “It does not appear that the authority of Combed ease 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.” In this case the tenant, to maintain the issue on his part, read in evidence a letter of attorney from the demandant Jonathan Elwell to one Joshua Ehoell. A deed executed by Joshua conveying the demanded prémises, proceeded thus: “Know ye that I the said Joshua by virtue of the power aforesaid, in consideration, etc., do hereby bargain, grant, sell and convey unto, etc. In testimony whereof I have hereunto set the name and seal of the said Jonathan, this,” etc.; signed Joshua Elwell, and a-seal. It was held that the letter of attorney and the deed of conveyance were insufficient in law to pass the fee from the demandant to the tenant.

In Hutchins v. Byrnes, 9 Gray, 367, it was objected that the assignment was not so executed by the treasurer as to be the act and deed of the corporation. The objection was not sustained, as the plaintiffs claimed to hold the mortgage by an assignment which purported in the body thereof to be from the corporation — the Bristol County Savings Bank. “The assignment,” say the court, “was made in the name, and as the act, of the corporation, according to the rule laid down in Combes’ case, and always adhered to in England and in this commonwealth. ’ ’

And in Haven v. Adams, 4 Allen, 80, where the mode of execution by the corporation was called in question, the objection was unavailing. In the body of the mortgage it was expressed to be the deed of the corporation, to which they had caused their seal to be affixed, and the name of their president to be signed. Chapman, J., in pronouncing the opinion, said: “The question in such cases is, whether the deed purports to be the deed of the principal, or the deed of the agent executed by him in behalf of the principal. In the first case, it is held to convey their property, because it is their deed; in the latter case, it does not convey their property, because it is his deed.”

In Ohio there is no general statute prescribing the mode in which deeds of conveyance are to be executed by corporations. In Sheehan v. Davis, 17 Ohio St., 571, the deed sets forth that: “This indenture, made this second day of July, in the year 1855, between the Albany City bank of the first part, and Charles Butler, of the city of New York, of the second part, witnesseth, that the said party of the first part, for and in consideration, etc., do grant, bargain, etc., unto the said party of the second part, and to his heirs and assigns forever,” etc., concluding’: “In witness whereof, the said party of the first part have caused their corporate seal to be hereto attached, and these presents to be signed by their cashier on the day and year first above written. ’ ’ It was held that the deed of conveyance by the banking corporation was properly executed, but .this court emphasized the .fact that, “in this case the deed throughout purports to be the deed of the corporation.” The deed did not, as in Elwell v. Shaw, supra, purport to be the deed of the attorney, but purported on its face to be the deed of the principal.

For collation of other authorities in line with the aforegoing views, see 1 Hare & Wal., L. C.,575; Am. & Eng. Encyc. of Law, vol. 4, pp. 238-242, and vol. 5, p. 440, and cases cited.

Subjecting the assignment claimed to have been made by the Scipio Iron and Coal Mining Company to the plaintiff in error, to the test of the cases we have cited, we do not think it can properly be held to be the act of that company, and it was therefore properly withheld by the court from the jury, when offered in evidence by the plaintiff.'

Section 4110 of the Revised Statutes of Ohio, provides that “No deed of real estate executed by any person acting for another, under a power of attorney duly executed, acknowledged, and recorded, shall be held to be invalid or defective because he is named therein, as such attorney, as the grantor, instead of his principal; nor because his name, as such attorney, is subscribed thereto, instead of the name of his principal.” But it cannot be claimed, that the assignment under consideration in the case at bar was made under a power of attorney, executed, acknowledged and recorded, as provided by the above section of the statutes.

It is suggested in argument, in behalf of the defendant in error, that the court will' notice that the transcript of the record of the directors authorizing the lease, and which was made by George F. Baker as treasurer, is also certified by George F. Baker as clerk, thus showing the fraudulent character of the whole transaction. But the record does not profess to contain all the evidence introducecl at the trial, and does not present to our consideration a question of fraud. The .judgment of the circuit court should, in our opinion, be affirmed.

Judgment accordingly..  