Opinion
December Term, 1822.
Where A. and B. having an interest in common with three others, executed a deed of bargain and sale for lands in their own names, professing in said deed to act as well for themselves as their cotenants, but acknowledging the payment of the purchase money transferring the title and warranting it "as attorneys aforesaid;" it was Held, in an action of covenant on the warranty that the title of the cotenants passed not, because the deed was not signed in their names; that the interest of those who executed the instrument did not pass, because the deed did not show any consideration paid them in their own right, but only as attorneys for others; and that the warranty could not be considered as a personal or independent covenant, but that as no estate passed the warranty was not binding.
COVENANT. On 10 May, 1810, the defendants executed an instrument of writing to one Jonathan Merrill, which, after a recital in the premises that the said Isaac Alexander and Charles T. Alexander acted in the execution of the instrument in their own behalf and as attorneys in fact for John Springs and Sarah, his wife, John McCoy and Catharine, his wife, and Cunningham Harris and Mary, his wife, witnessed that the said Isaac and Charles, as attorneys aforesaid, received the consideration money, and gave, granted, bargained, and sold, aliened, and confirmed unto the said Jonathan Merrill, his heirs and assigns forever, two certain tracts or parcels of land situated in the county of Rowan, and all the estate, right, title, interest, claim, and demand, and property whatsoever of the said Isaac and Charles, as attorneys aforesaid, of, in, and to the land and premises; and the instrument contained, further, the following clause: "And the said Isaac and Charles T. Alexander, as attorneys aforesaid, for themselves and their heirs, the aforesaid land and premises, and every part thereof, against them and their heirs, the claim or claims of all and every other person or persons whatsoever to the said Jonathan Merrill, his heirs and assigns, shall and will forever (156) warrant and defend by these presents. In witness whereof the said Isaac and Charles T. Alexander have hereunto set their hands and affixed their seals the day and date above written."
The instrument was signed
"ISAAC ALEXANDER. (L. S.) "CHARLES T. ALEXANDER. (L. S.)"
Jonathan Merrill on 15 July, 1815, conveyed by deed his interest in the lands to the plaintiff, and afterwards John McCoy and Catharine, his wife, and Mary Harris (the said Catharine and Mary being two of the femes covert for whom defendants professed to act as attorneys), brought an ejectment against the present plaintiff for their part of the land, recovered the same and obtained the possession. By consent of the counsel in the case it was considered as an action in which Merrill was the plaintiff, and the pleadings were amended accordingly; and it having been conceded by Gaston for the plaintiff that the interests of the femes covert were not conveyed by the instrument, the court desired of the plaintiff's counsel to discuss the question whether anything passed by the deed, and if nothing passed, whether an action could be maintained on the covenant against the defendants.
Gaston for plaintiff.
The titles intended to be conveyed by this deed are those of the Alexanders in their own right, and those of the three other coheirs by the defendants as their attorneys in fact. There must be a valuable consideration to support a bargain and sale, the very name of which implies a quid pro quo. It is not essential that the bargainees themselves should pay the consideration money; for if it be paid by a stranger on their account, it will be sufficient to raise an use in the bargainee. Cro. Eliz., 819. Nor is it necessary that the money should be paid to the bargainor, but it must be paid either to himself or to some person for his use. Now the receipt of the consideration money is acknowledged by the Alexanders in their character as attorneys; and from no part of the deed can it be collected that any money was paid to themselves in their private right, although it may reasonably be supposed that two-fifths of the sum were so paid, (159) and that the deed does not describe the transaction truly. Yet we are not at liberty to depart from it on any private speculation, nor can the parties make any averment against it. It follows then that the title of the Alexanders was not conveyed by the deed.
Did the title of the other coheirs pass by the deed? I conceive that in point of form it is too essentially defective to convey their title. The land was vested in them and by them alone can it be conveyed. Their power of attorney, as such, conveyed no interest to the defendants, and consequently none could pass from them. Thus, where a lease was made in the name of the attorney, though it were added also by virtue of a letter of attorney, or by A. B. as attorney for D. D., it was held a void lease. Bac. Abr., Tit. "Leases," sec. 10. And a bond reciting certain differences between the obligee and obligor as attorney for F. F., was conditioned that the obligor should perform such award as the arbitrators therein named should make upon the premises. It was agreed that the submission in this form was not binding upon the principal, though it was resolved to be so upon the obligor. 1 Ld. Raym., 146. The part of the deed which attempts to convey the shares of the principals keeps them in the background, and presents alone the bargainors as their attorneys. The execution and delivery of a deed ought likewise to be in the name of the principal, and if it be the execution of the agent only it is void as to the principal, though the form of words used in the execution is not material, as where opposite the seal was written, for S. B. (the principal) M. W. (the attorney). 2 East, 142. Here, however, the deed is sealed and delivered as the act of the Alexanders, without any mention or recognition of their principals. It is evident, therefore, according to all the authorities, that no title passed from the other coheirs.
And this leads to the important question whether the defendants are personally bound by the covenants of warranty. Whether it be (160) just on principle that the plaintiff should be indemnified for the loss sustained by his confidence in the defendants' having rightfully conveyed, I will not undertake to decide, because the law speaks a language which can neither be misunderstood nor disobeyed. The ancient rule was that to every good warranty in deed there must be some estate to which the warranty is annexed that may support it; for if one covenant to warrant land to another and make him no estate, or make him an estate that is not good, and covenant to warrant the thing granted, in these cases the warranty is void. Coke Litt., 378.
When the action of covenant was substituted for the warrantia charter, the same principle was continued in operation; and where the main act to be performed, as conveying an estate, granting a lease, etc., is void, relative and dependent covenants are void also; as where A., being possessed of a term, granted to B. so much of the term as should be unexpired at the time of his death, and covenanted for B.'s quiet enjoyment, the lease being there held void for uncertainty, the covenant was holden void also. T. Raym., 27. In Frontin v. Small, a lease was made by an attorney in fact, in his own name, and it contained a covenant on the part of the lessee to pay rent to the attorney. In an action of covenant brought by him to recover the rent, it was held that as the lease was void the covenant was so likewise. Strange, 706. In Northcote v. Underhill, the principle did not apply, because there was a separate and independent covenant, not referring to the estate intended to be granted nor waiting upon it; and in such cases the covenant may be enforced, although no estate is granted. Salk., 199. As, therefore, it appears on the face of this record that nothing passed by the deed, either from the defendants or their principals, the covenant of warranty never had a legal existence, and cannot be enforced. I think the judgment (161) is right, and ought to be affirmed.
If an estate in the lands in question passed by the deed from Alexander to the plaintiff, the clause of warranty, or covenant for quiet enjoyment, whichever it may be considered to be, will have its usual operation in favor of the plaintiff. But if an estate did not pass by that deed, and it is apparent on the deed that nothing passed, the question arises, What is the effect of the warranty or covenant? That nothing passed by the deed is apparent, I think, and it matters not whether the defendant was authorized and qualified by those who had title to the lands to sell them or not, because the deed is executed by him by signing his own name only, and therefore it is his own deed; and being his own deed only, and he having no title to the land, but the title of the land being in his principals which the deed sets forth, it follows from viewing the deed itself that no title passed from the defendant to the plaintiff. In order to have passed title to the lands, had he authority for so doing, he ought to have signed the names of his principals to the deed, and then it would have been the deed of his principals, executed by them by their agent duly authorized by them so to do. That the law is so appears from Comb's case, 9 Reports, 77a, followed and supported by numerous decisions that have taken place since, 2 Ld: Raym., 1418; 2 East, 142; Str., 705. If, then, nothing passed by the deed, what effect can the clause of warranty have as such? In Ed. Seymour's case, 9 Coke, 96, it was said, and so decided by the Court. "That every warranty must be knit and annexed to some estate; that every warranty has its essence by dependency upon an estate, so that if a man make the a gift in tail, with warranty to him and his heirs, and tenant in tail maketh a feoffment and dies without issue, the warranty bindeth not, because the estate to which the warranty was annexed is determined; that if no estate is conveyed the warranty is a nullity; that if any estate is conveyed the warranty annexed (162) to it becomes inoperative when the estate determines." So in the present case, if no estate was conveyed there is nothing to which a warranty can attach, and therefore the clause of warranty as such is inoperative and the plaintiff's claim cannot be sustained on that ground.
It is next to be seen whether it can be supported on the same clause as a covenant and from this inquiry I apprehend there will be the same result. In Caponhurst v. Caponhurst, 1 Lev., 45, and the same case reported in Ray, 27; 1 Keb., 164, 130, 183, where lessee for years of a long term assigned so much of the term as should be to come at the time of his death to the plaintiff, and covenanted that he should enjoy it, it was held that the assignment was void, and for that was cited 1 Co. Cheddington's case, and that the covenant for enjoyment was also void, and for that was cited Yelv., 18. In Northcote v. Underhill, 1 Salk., 199, also reported in 1 Ld. Ray., 388, the defendant by his deed granted, bargained, and sold to the plaintiff and his heirs; provided that if the grantor paid so much money it should be lawful for him to reenter, and that he covenanted to pay the said money to the plaintiff, and a breach was assigned in nonpayment of the money. It was argued for defendant that the deed was void for want of enrollment (which was admitted by the court), and that, like the case in Lev., as nothing passed by the deed the covenants were void. But Lord Holt said that in Caponhurst v. Caponhurst the covenant was relative and dependent; it referred to an estate, and was to wait upon it; if there was no estate the covenant failed, but in the case his Lordship was then deciding he said the covenant was distinct, separate and independent; and it was not material whether any estate passed or not. So that both these cases are authorities in the present question, for the covenant for quiet enjoyment is annexed to and dependent (163) upon the estate granted, and if no estate or interest passed the legal consequence is that the covenant is void, of course. Were there a distinct, separate and independent covenant by which the defendant bound himself, as for the payment of money or anything else, he would be bound to the performance of such covenant.
I therefore think it is apparent from the deed itself that no estate passed, because the deed was not signed by the principals in their respective names by their agent, and that consequently the warranty or covenant (whichever it may be called) resting and depending upon it is void and inoperative, and that the judgment of the court below is right, and ought to be affirmed.
HENDERSON, J., concurred.
PER CURIAM. Affirmed.