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In all these cases, the attesting witness ought to be called ta prove the execution, jf he can be produced. \f, indeed, % party to the suit agrees, that the other party should act upon the instrument, as if the witness himself had been produced, that would dispense with his testimony. (i)
The subscribing witness is to prove the delivery Qf the deed, or, if the writing is not under seal, the hand-writing of the party. It is not absolutely necessary that the witness should see the party sign or seal; if he sees him deliver it already signed and sealed, or merely sealed, as his own deed, it will be sufficient. Signing is not an essential part of a deed at common law; but it has been required in some cases by act of parliament, particularly by the statute of frauds (2), which expressly directs a signing in all grants of a freehold estate in lands, and in some other species of deeds; in which, therefore, signing seems as necessary as
Signing is sometimes made necessary to the execution of a power, by the express words of the deed which creates the power; and, in such cases, if attestation of the signature is required, an attestation merely of the sealing and delivery will not be sufficient . Thus, in the case of Wright v. Wakeford (3), where a power was created to be executed by trustees, with the consent of the cestui que trusts, testified by writing under their hands and seals, attested by two or more credible witnesses, but the attestation expressed only, that the deed had been sealed and delivered by the cestui que trusts and the other parties in presence of the subscribing witnesses, the majority of the court of Commou Pleas determined, that the power had not been duly executed; for the question is to be determined by the true construction of the terms of the attestation, and by that alone; and the word " sealed," according to its true acceptation and
(1) Ling v. Raine, a Bos. & Pull. (3) 4Taunt. 114; Mansfield Ch. J. S.t. (tiuenting. 17 Ves.454. S.C.
(i) Sc. xoC.a. e. 3. 1.1.
ordinary ordinary sense, cannot be considered as implying, that the parties, who put their seals to the instrument, put also their hands to it, or signed it in the presence of the witnesses. It was further determined in this case (l), that a subsequent attestation, indorsed upon the instrument after the death of one of the cestui que trusts, and expressing that the parties had also signed in the presence of the subscribing witnesses-, would not cure the original defect; on the ground, that the attestation, to constitute a due and effectual execution of the power, ought to make a part of the same transaction with the signing and sealing, such being the usual and common way of attesting the execution of all instruments requiring attestation. So in the hate case of Doe on the demise of Mansfield v. Peach (2), where the power was directed to be executed " by any deed or writing wider the hands and seats of the parties to be by them duly executed in the presence of, and attested by, two or more witnesses," and the attestation was only of the sealing and delivery, .the court of King's Bench were of opinion, that, m order to make a due execution of the power in this case, the instrument ought to be made with all the forms required by the power, and that there must also be an attestation of its execution with all those forms; and with respect to the second point, which arose here as well as in the case of Wright v. Wakefbrd, the* Court said, it was not necessary to determine at what precise time the attestation must be made, but that the attestation subsequent to the death of one of the parties could not give to their act an operation, which it never had during the lives of the parties. Where, however, the deed creating the power directed, not, that the instrument should be attested by witnesses, but, that the power should be executed by any writing, to be signed and sealed in the presence of two or more witnesses, and the deed in pursuance of the power was expressed to be executed in the presence of the witnesses, but the attestation applied only to the sealing and delivery, the Chancellor was of opinion, that in such a case it might be properly left to the jury to presume, that the deed was signed, as it professed to be, in the presence of the witnesses, who attested the sealing and delivery (1).
In consequence of the decisions in the cases of Wright v. Wakeford and Mansfield v. Peach, (which might affect the titles of purchasers, in case the fact of signature were not expressed in the memorandum of nttestation,) an act of parliament has been lately introduced^), which enacts, " that every deed or other instrument, already made, with the intention to exercise any power, authority, or trust, or to signify the consent or direction of any person, whose consent or direction may be necessary to be so signified, shall, if duly signed and executed and in other respects duly attested, be, (from the date thereof, and so as to establish derivative titles,) of the same validity and effect, and proveable in the like manner, as if a memorandum of attestation of signature, or of being under hand, had been subscribed by the witness; and the attestation, expressing the fact of sealing and delivering, without expressing the fact of signing or any other form of attestation, shall not exclude the proof or the presumption of signature."
Sealing is essential to a deed, but it is not material with what seal it is sealed; and any number of parties may use the same seal (3); or, one may seal for the rest with their consent, and the deed will be as binding, as if every one bad put his several seal (4). Thus, where one of two defendants, in the presence of the other and by his authority, executed a bill of sale for them both, the two defendants being partners in the transaction, but there was only one seal, and it did not appear whether the seal had been put twice upon the wax, the Court of King's Bench held, that
(1) M'Queen v. Farquhar, II Ves. (3) Perkins, ch i. s. 134. 467. 17 Ves. 4J8. (4) 4T.Il.314., and we (3).
(1) St. 54O. 3. c.i68.
no no particular mode of delivery was necessary; and that it was sufficient, if a party executing a deed, treated it as his own. The report adds, that the court relied principally on the circumstance, that the deed had been executed by one defendant for himself and the other, in the presence of the other (1). If a bond, executed abroad, is declared upon in the usual form, as a deed made and sealed by the defendant, and the instrument on being produced appears not to have a seal but instead of it a penmark of a particular kind, evidence is admissible to shew, that it is the custom of the country to execute bonds in this manner. (2)
With regard to the delivery, no particular form or , mony is necessary: it will be sufficient, if a party testifies his intention in any manner, whether by action or by word, to deliver or put it into the possession of the other party; as, if a party threw the deed upon a table, with the intent that it may be taken by the other, who accordingly takes it; or, if a stranger deliver it with the assent of the party to the deed (3). If the deed is made by a corporation, actual delivery is not required; and fixing the common seal, that is, the corporate seal, or any other used for the occasion (4), is tantamount to a delivery; but if the corporate body had given a letter of attorney to deliver, the deed is not their's till delivery. (5)
It has been before mentioned, that proof of delivery, without any proof of signing or scaling, will be sufficient evidence of execution; for the party by delivering a deed, purporting to be his own, adopts the seal and the signature. But, under particular circumstances, less evidence has been admitted to prove the execution. Thus, in a case where it appeared that the defendant, a few minutes after having executed the deed, brought it to the witness in an
fi) Ball v.Dumterville and another, (?) Com. Dig. tit. Evidence, (A. 3), 4 T. R. 313. Co. Lit. 36. a. [Note 423.]
(z) Adam v. Kerr, l Bos. St Pull. (4) Perkins, c. a. s. 131. 3«e. (5) Co. Lit. 36. a. [Note
adjoinadjoining room, and desired him to attest it; another attesting witness was still in the room, where the deed had been executed; and it was further proved, that the witness was acquainted with the defendant's hand-writing, and that the defendant knew of his being acquainted with it, and that the defendant had acknowledged the instrument; but there was no proof of the act of delivery, and no reason was shewn, why the other attesting witness could not be called to prove the delivery; in this case the Court of Common Pleas was of opinion, that the whole might be considered as one transaction, and that there was sufficient proof of the execution. (i)
If a deed, or other written instrument, is attested, but none of the witnesses are capable of being examined, the course then is to prove an attesting witness's hand-writing; and. this will be a sufficient proof of the execution; as, where the attesting witness is dead — or blind (2)— or incompetent to give evidence, either from insanity (3), or from infamy of character (4), or from interest acquired after the execution of the deed (5)—or where the subscribing witness is absent in a foreign country (6), or out of the jurisdiction of the superior English courts, so as not to be amenable to their process (7)—or where he cannot be found after strict and diligent inquiry (8) *. The handwriting
• In the case of Cunlifife v. Sefton, (2 East, 183.) it was proved that diDgent inquiry had been made after one of the attesting witnesses to a bond, at the residence of the obligor and obligee, without being able to ohain any intelligence of