6T R. 176; 2 Johns. 213; 13 Id. 307; 2 Cai. 254. 2. That the plaintiff could not recover even if the agreement were binding, because performance of the stipulations on his own part therein being a condition precedent, was not averred or proved: 2 Wend. 587; 8 Johns. 322; 13 Id. 94; 3 T. R. 590; 1 East, 619. 3. That the agreement of January 31, 1829, was void under the statute of frauds, a parol enlargement of the time of performance of a written contract being admissible only where a parol contract would be valid: 15 Johns. 200; Sug. Vend. 87-100; 1 Phil. Ev. 498; Rob. on Frauds, 81; 14 Johns. 358; 5 Cow. 162. 4. That part performance did not aid said agreement, if void: 2 Johns. 221; 6 Ves. 39; 1 Pick. 328; 11 Mass. 342; 6 East, 302; Freem. 486. 5. That if all other objections should fail, the plaintiff could not recover because he had not shown a proper demand for a conveyance, and attendance to receive it after wating a reasonable time: Sug. Vend. 164, 261, 262; 6 Cow. 13; 7 Id. 53; 3 Wend. 249; 20 Johns. 130.

J. B. Hunt, and Greene C. Bronson, attorney-general, for the plaintiff, cited 4 Cow. 564; 1 Johns. Cas. 22; 3 Johns. 520; 14 Id. 330; 15 Id. 203; 5 East, 293.

By Court, SAVAGE, C. J. The first question is, whether the agreement of December 11, 1828, is binding upon all the defendants? This contract is the basis of any liability which may rest upon any or all of the defendants. It was signed by Kingsbury "for self, Goodrich, and Champion." The proof of the execution by Kingsbury proves nothing against the other defendants. It shows the instrument to be the deed of Kingsbury; but to make it the deed of Goodrich and Champion, something else must be proved; it must be shown that Kingsbury had authority to act for them; and as he professes to act by deed, an authority from them under their seals is indispensable. "An authority to execute a deed must be given by deed:" 1 Com. Dig., Att'y, C, 5. In the case of Banorgee v. Hovey, 5 Mass. 11 [4 Am. Dec. 417], the action was assumpsit for money advanced to one Smith, who was concerned with and had authority from the defendants to procure it. Smith gave a bond, which his authority did not specify, and the court held the defendants not bound, as Smith attempted to bind his partners and employers by deed without any authority so to do. In that case the objection is admitted to be technical, but not therefore to be disregarded. 5 Binn. 613, and 1 Yeates, 200, are to the same effect. Even partners are not permitted to bind their

copartners by seal, unless the copartners are present and assenting. In Ball v. Dunsterville and another, 4 T. R. 313, the action was on a bill of sale executed by one of two partners, in the presence and by the authority of the other, but there was but one seal; the court held the execution sufficient, and they relied principally on this deed having been executed by one defendant for himself and the other, in the presence of that other. And the same court, in Harrison v. Jackson and others, 7 T. R. 207, held the instrument invalid against partners, when that circumstance was wanting. There the execution was like the execution of the agreement in this case. One of the partners, Sykes, signed "For Jackson, self, and Rushforth. W. Sykes." And the court held it was not obligatory upon Jackson and Rushforth, as they were not present and assenting. In pursuance of this principle, this court held, in Mackay v. Bloodgood, 9 Johns. 285, 286, that a bond signed by one of two partners, with the partnership name, was good, when the other partner had seen and read it, and had assented that his partner should execute it for both, although he was not actually pressent when the signature was put to the instrument, but was about the store when the bond was signed. The same point was recently before this court in McBride v. Hagan, 1 Wend. 326, and decided in the same way. So in the case of Steiglita v. Egginton and others, 1 Holt, 141, where one of the defendants signed a bond" For self and partner," Chief Justice Gibbs says, "the authority to execute must be by deed." He adds, that if one partner who does not execute, acknowledge that he gave an authority, that must be presumed to be a legal authority, and it must be under seal and produced. One man can not authorize another to execute a deed for him but by deed, and no subsequent acknowledgment will do.

The defendants in this case were not partners but tenants in common of the lands in Ohio, which were to be conveyed to the plaintiff. One tenant in common has no power as such to convey or dispose of the lands of his co-tenant, and can not execute a deed of the lands of his co-tenant in any other manner than a stranger. That an authority to execute a deed must be given by deed to render the deed valid, was recognized by this court in Van Ostrand v. Reed, 1 Wend. 431. In that case the judge at the trial rejected the evidence of the person whose name had been used, when called to prove that he authorized it; that was not an action upon the instrument, but where it came in collaterally. This court thought the evidence should

have been received to disprove fraud, to prove which, the fact had been shown that the name of the witness had been put to the instrument by others. That case, however, recognizes the general principle. An authority under seal should therefore have been produced from Goodrich and Champion to Kingsbury, allowing him to execute the contract in question, or all contracts generally respecting their lands; a parol authority is not sufficient. And this comports with other principles. No man shall be divested of his interest in real estate, but by his own acts and by operation of law; if an authority by parol may be shown, a man may be made to convey all his estate, and the conveyance rest entirely in parol. As to Goodrich, all his acts and his letters recognize the contract as his. There is, therefore, something more than mere parol declarations to charge him; and I am inclined to think that as to him, if under the circumstances the evidence was admissible, an authority was sufficiently shown; it was not by deed, but he admits in writing that he had executed a deed. It was said by Gibbs, C. J., in Steiglitz v. Egginton, that no subsequent acknowledgment will do. A subsequent parol acknowledgment was probably intended, but I should be unwilling to say that a subsequent written acknowledgment, accompanied by acts recognizing the deed as the deed of him whose name had been used, was not proper evidence to be submitted to a jury. It is, indeed, said in the case last referred to, that if an authority be admitted by parol, it must be presumed to be a legal authority under seal, and must be produced; and such would seem to follow from general principles. The plaintiff should therefore have either produced the authority from Goodrich and Champion to Kingsbury, or given the defendants notice to produce it; and on their neglecting or refusing to do so, inferior evidence, and such acts as would imply an authority, would be admissible. It seems to me, therefore, that before any evidence could strictly and regularly have been received of the acts and acknowledgments of Goodrich, notice should have been given to produce the authority by virtue of which Kingsbury acted..

The same observations apply to the evidence respecting Champion's admissions; they were merely parol and general that he owned lands in Ohio in company with the other defendants, and that Kingsbury was their agent to sell and dispose of them. The legal presumption is, that he spoke of a legally authorized agency; but no appointment is produced, no notice to the defendants to produce it, no act of Champion's in affirm

ance of the contract made by Kingsbury, and no allusion in his conversation to this case. To admit evidence of this description would be a total dispensation with the rule that an authority to execute a deed must be by deed; it would be dangerous in its consequences, and alarming to the owners of real estate. If, however, the contract of the eleventh December had been proved, that was all the contract with which Champion had any connection, even nominally, and by it Blood's conveyance on the first of March, 1829, was a condition precedent to the conveyance to be made by the defendants; there is no pretense that a conveyance by Blood was then offered. Indeed it is proved by the declarations of Blood that on that day an offer was made by the defendant Goodrich to fulfill the contract on his previous performance. If, therefore, the plaintiff had declared upon the sealed contract, and its execution by all the defendants had been proved, no cause of action is shown, but is disproved. The plaintiff, however, does not rely upon the sealed contract, except as inducement to a parol contract-a parol contract to sell and convey lands; a contract void by the statute of frauds, made by two of the defendants only, and without any authority whatever from the third. The plaintiff contends that the parol contract of the thirty-first January, 1829, was valid as a mere extension of the time of performance of the sealed contract. The rule is well established that a written instrument shall not be contradicted by parol, but any ambiguity about it may be explained, or an additional agreement affecting the subject may be made by parol when a parol agreement is valid. Such was the case of Franchot v. Dart,1 5 Cow. 506. There no place having been mentioned in the agreement itself where it should be performed, the parties appointed a place by parol. To make that case applicable here, it should have been shown that no time had been appointed in the written contract. Time here was of the essence of the contract, and the plaintiff having failed to perform on his part, the defendants are discharged from the contract. There are cases when the time of performance of a written contract may be enlarged by parol; but I apprehend that doctrine does not apply to contracts for the conveyance of land, or to any other contract, where the contract itself would not have been valid if made by parol. In Keating v. Price, 1 Johns. Cas. 22 [1 Am. Dec. 92], the court say: "This being originally a simple contract, we are of opinion that it was competent for

1. Franchot v. Leach,

the parties, by parol agreement, to enlarge the time of performing it."

It was further objected that the plaintiff should have prepared and tendered a deed to each of the defendants for execution. I understand the rule in this state to be, that the party entitled to the deed must demand it; if it is not refused he should, allowing a reasonable time for the defendant to prepare and exeecute it, present himself again to receive it: 7 Wend. 129; but if on demand the defendant positively refuses, it would be idle to make another demand. So, too, the party is entitled to the whole title, and if upon demand any one of those whose duty it is to convey refuses to do so, it would be unnecessary to make demand of the others. In this case the demand was made of Goodrich, who refused; there was therefore no necessity to call on Kingsbury or Champion, for if they should convey, the plaintiff would not have the whole title.

It is unnecessary to discuss any other points in this case. In my opinion the plaintiff failed to prove the contract of December 11, 1828, and therefore a new trial must be granted.

AUTHORITY TO EXECUTE A DEED MUST BE UNDER SEAL: Jackson v. Murray, 17 Am. Dec. 53; Reed v. Van Ostrand, 19 Id. 529. To the same effect is Wells v. Evans, 20 Wend. 258, citing the principal case.

So it is held in

Gates v. Graham, 12 Wend. 55, referring to Blood v. Goodrich, as authority that a partner has no power to bind his co-partner by deed without special authority under seal. See, also, as to the power of a partner to seal for his co-partners, the note to Morgan v. Scott, 12 Am. Dec. 37; Trimble v. Coons, Id. 411; Robinson v. Crowder, 17 Id. 762, and other cases cited in the note thereto; Hart v. Withers, 21 Id. 382, and note; Cady v. Shepherd, 22 Id. 379, and note.

PAROL RATIFICATION OF AGENT'S UNAUTHORIZED DEED.-See the note to Jackson v. Murray, 17 Am. Dec. 59, where the general rule deduced from the preponderance of authority is stated to be that such ratification renders the deed binding on the principal. But the contrary is held in Stetson v. Patten, 11 Id. 111. In Blood v. Goodrich, 12 Wend. 525, which was a second decision in the principal case, it was held that a subsequent parol acknowledgment that an agent had authority under seal to execute a prior deed was competent, but that if the agent had no such authority the subsequent parol acknowledgment and ratification of the deed would not bind the principal. Antedating a power of attorney is held to be a good ratification of a sealed contract previously executed, in Milliken v. Coombs, 10 Am. Dec. 70.

WRITTEN AUTHORITY TO EXECUTE A CONTRACT WITHIN THE STATUTE OF FRAUDS, is held unnecessary to make it valid, in Jackson v. Murray, 17 Am. Dec. 53, but it is said to be sufficient to satisfy the statute if the principal's name is affixed by an agent authorized by parol.

PAROL EVIDENCE ENLARGING AN AUTHORITY GIVEN IN WRITING, is inadmissible: Ashley v. Bird, 14 Am. Dec. 313.