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Kime v. Brooks.

ders. In this case we see no evidence of any act done by the defendant, amounting to an actual exclusive pos. session, which could give notice, that he intended to keep out all others, nor any act, amounting to a disclaimer of the right of the heirs of James Anders to the lot., Love v. Edmonson, 1 Ired. 152. Murry v. Shanklin, 4 Dov. and Batt, 291.

The defendant had not such a possession as to reduce the title of the heirs of James Anders to a mere right, and the conveyances by them to the plaintiff, were not void, but transferred to him what right was in them. The demand, stated in the case, was sufficient notice to the defendant, and his refusal to deliver possession, made him a wrong.doer.

PER CURLAM.

Judgment affirmed.

DAVID KIME vs. JOHN T. BROOKS,

The signing, sealing and delivery of a deed by an agent, except where the

authority is by an instrument under seal, will only be valid when they are

done in the actual presence of the principal. The case of Davenport v. Sleight, 2 Dev. & Bat. 381, cited and approved.

Appeal from the Superior Court of Law of Randolph County, at the Fall Term, 1848, his Honor Judge Cald. WELL presiding.

This is an action of debt on a bond of one Hamlin and the defendant's testator, and was tried on non est factum pleaded. To establish the execution of the bond by the

Kime v. Brooks.

testator, his daughter was called as a witness and she de: posed, that a servant of Hamlin brought a letter to her father, the testator, at his house, inclosing the paper now sued on, which was then signed and sealed by Hamlin, and had a seal for another name, and requesting the tes. tator to sign it, with a view to receive money on it: that her father, by reason of age and infirmity, could not write, and directed her to sign the paper for him; and that for that purpose he laid the paper down on a table in the house, and turned away and went out into the yard, and she then signed his name and delivered it to the servant, who took it away: that at the time she signed the paper, she heard her father conversing with his wife in the yard, and that she did not then see him, nor believe that he could see her; and that no objection was afterwards inade by her father to what she had done. The witness further stated, that she had been in the habit of signing her father's name by his directions to Hamlin's notes, and those of other persons.

The Court instructed the jury, that there was such a presence of the testator as would make the signing by the daughter binding on him; and that if the paper was left on the table with the intent that the daughter should hand it to the servant when signed, then her delivering it, as stated by her, was a good delivery, though the tes. tator was in the yard at the time. There was a verdict for the plaintiff, and the defendant appealed from the judgment.

Morehead, for the plaintiff.
Haughton, for the defendant.

Ruffin, C. J. This Court does not concur in the in. structions to the jury. The Touchstone 57, states the rule upon which the case depends in a short, but very clear,

"Where one person delivers an instrument as

manner.

Kime v. Brooks.

the act of another person, who is present, no deed conferring an authority is requisite. But a person cannot, unless authorised by deed, execute an instrument as the act of a person who is absent; and every letter of Attorney must be by deed.” The plain meaning of the passage is, that what a person does in the presence of another, in his name and by his direction, is the act of the latter, as if done exclusively in his own person ; but that what is done out of his presence, though by his direction and in his name, cannot in law be considered an act in propria persona, but one done by authority; and that when the authority is to execute a deed by signing. sealing and delivering it for the party, and, especially, the delivering, it cannot be oral, but must be by deed. There are some instances in modern times, in which Judges have been moved by the hardship and justice of the case to depart in some degree from this rule, though 80 precise in its terms and so wholesome in its general application. But in this State it has been scrupulously adhered to, when it operated to the prejudice of claims as just in all respects as the present, if not more so. Thus in Davenport v. Sleight, 2 Dev. & Bat. 381, it was held that an instrument signed and sealed by the defendant in blank and delivered to an agent, with directions to purchase a vessel for the defendant, and fill up the instrument with the price to be agreed on and deliver it, was not a good bond, though the defendant afterwards declared his approbation of what had been done. It would afford admission to too many abuses, especially upon infirm and illiterate persons, to admit parol evidence of an authority to execute and deliver deeds. It has been thought, that it was going further than principle would justify, to allow of a delivery as an escrow, unless the final delivery be authorised by deed. But that seems to stand on firm ground ; for the absolute delivery by the party himself rests in the testimony of witnesses, and the

Kime v. Brooks.

conditional delivery by him may therefore well depend upon the like proof. But when the party himself does no act, but the whole transaction is performed by another in his name and in his absence, the security of titles requires that the authority to act should be by deed, as a permanent evidence of its nature, which cannot so easily be fabricated or misconstrued. The law may well be different with respect to notes and other contracts not under seal; because their operation is generally barred, unless used in a period comparatively short. But deeds are of enduring efficacy, and one, executed like the present, may be set up at any distance of time, when the conditions or circumstances under which it was authorised are incapable of proof. Besides, deeds operate without proof of consideration and proprio vigore, while it is otherwise with simple contracts. The Court holds, therefore, that it was indispensable to the validity of this in. strument, as a bond, that the party should have been present at its execution and delivery. That he was not present seems evident and certain. The daughter says, she did not, at the time she signed the paper and delivered it, see her father, nor did he or could he see her, as she believes. They could not therefore be said in any just sense to be in each other's presence. The act of the daughter could not be said to be her father's, in that he saw or knew or could know of his own knowledge, that she was in fact doing what he directed her; but it rested in his confidence, that she would pursue his directions, and in her testimony that she did pursue them. The fa. ther could know only from her relation and not for him. self, what she had done. Therefore it is plain, that her acts were not in his presence. In the execution of wills it has always been held, that, under the statute which requires the attestation of the witnesses in the presence of the testator, the attestation must be at least in the same J'oom with the testator, or, if not, in such a situation as

Holdfast v. Shepard.

to be in fact within his sight, as in the case of the lady, who sat in her carriage while the witnesses wrote their names at a window within her view. But here the witness prored and the Court assumed, that the father was not in the room nor in sight of the daughter, when she executed and delivered the instrument; and, if so, he was not present. For if the person cannot see or know for himself, at what distance shall he be said to be present, and at what, absent? There can be no rule but the one, that he must be in such a situation as to know what is done, and be able at the instant to control the agent.

Per Curism. Judgment reversed and venirc de novo.

JOHN HOLDFAST vs. WILLIAN B. SHEPARD,

Where a recovery in ejectment is effected on the demises of two only out of

several tenants, and afterwards is brought for mesne profits, pone but the shares of such mesne profits to which those two tenants are entitled can

be recovered. And it makes no difference whether the action for the mesne profits be brought

in the name of the fictitious lessee or of his lessors. The case of Holdfast v. Shepard, 6 Ire. 361, cited and approved.

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term, 1848, his Honor Judge Settle presiding.

The action is trespass for mesne profits, brought in the name of the plaintiff in ejectment, after his lessors were put into possession under a hubere facius possessionem from this Court in the case reported 6 Ired. 361. The judgment was there given on the first count, which was

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