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W. Hilliard, for the plaintiff.

E. Blake, for the defendant.

By Court, SHAW, C. J. Supposing the promise contained in defendant's letter, in answer to the plaintiff's proposition, to be made on a good consideration, the defendant not being the owner of the land, and having but a remote and contingent interest in it, the promise was purely personal and must be construed strictly according to its terms: Spencer v. Marriott, 1 Barn. & Cress. 457. Such a promise to pay for the wall, in any contingency, was not asked for by the plaintiff's letter, and the bargain without it would probably have been a beneficial one to the plaintiff, because it would have enabled him, without building a more expensive wall than he must have built on his own land, to gain half a foot of land in the whole line. It is also quite probable that the plaintiff made his proposal under a belief that the defendant was the owner of the land; and he seems to have expected nothing more than a license to erect the one half of the wall on the trust estate, which he did do and had the benefit of it. But by thus building on the land of another, without a stipulation for leave to remove it, the wall became the property of the owner of the soil on which it was built.

Considering the stipulation in the defendant's letter as a promise upon a legal consideration, it was personal, conditional, and to be construed strictly; and the court are of opinion, that the act of the defendant, in joining with his wife in a deed expressing their assent to a conveyance by the trustees, was not making use of the wall upon any occasion or for any purpose of his own, within the meaning and terms of the promise relied on, and that the direction of the judge of the court of common pleas was right.

Exceptions overruled.

CONTRIBUTION TO BUILDING OF Party wall BY ADJACENT OWNERS: See Campbell v. Mesier, 8 Am. Dec. 570.

GARDNER v. GARDNER.

[5 CUSHING, 483.]

GRANTOR'S NAME SIGNED TO DEED BY THIRD PERSON IN HIS PRESENCE with his verbal assent, with the addition "by G.," the person signing, is sufficient without an authority under seal to the person so signing, be. cause it is deemed the grantor's own act.

WRIT of entry to foreclose a mortgage. The only question in the case was as to the sufficiency of a certain conveyance from one Polly Gwinn, under which the demandant claimed. It s appeared that when the conveyance was executed the said Polly's daughter, Mary G. Gardner, offered to sign for her mother, to which the latter assented, and the name was accordingly written, "Polly Gwinn, by Mary G. Gardner," in the presence of said Polly and of the attesting witnesses. Conditional judgment for the demandant.

C. Bunker, for the demandant.

T. G. Coffin, for the tenant.

By Court, SHAW, C. J. The only question is upon the sufficiency of the execution of a mortgage deed, as a good and valid deed, of Polly Gwinn. The execution of the deed is objected! to, on the ground that when a deed is executed by an agent or attorney, the authority to do so must be an authority of as high a nature, derived from an instrument under the seal of the grantor. This is a good rule of law, but it does not apply to the present case. The name being written by another hand, in the presence of the grantor, and at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers, and she merely uses the hand of another, through incapacity or weakness, instead of her own, to do the physical act of making a written sign. Whereas, in executing a deed by attorney, the disposing power, though delegated, is with the attorney, and the deed takes effect from his act; and therefore the power is to be strictly examined and construed, and the instrument conferring it is to be proved. by evidence of as high a nature as the deed itself. To hold otherwise would be to decide, that a person having a clear mind and full capacity, but through physical inability incapable of making a mark, could never make a conveyance or execute a deed; for the same incapacity to sign and seal the principal deed would prevent him from executing the letter of attorney under seal.

It appears to us, that the distinction between writing one's name in his presence and at his request, and executing a deed by attorney, is obvious, well founded, stands on satisfactory reasons, and is well sustained by authorities: Ball v. Dunsterville, 4 T. R. 313; The King v. Longnor, 1 Nev. & M. 576; S. C., 4 Barn. & Adol. 647; 2 Greenl. Ev., sec. 295. We think the deed was well executed by Polly Gwinn; and judgment must therefore stand for the demandant.

GRANTOR'S NAME SIGNED TO DEED BY THIRD PERSON IN HIS PRESENCE, and by his direction, is as valid and binding as if written by the grantor himself: Wood v. Goodridge, post; Jansey v. McCahill, 22 Cal. 565; Mutual Benefit Life Ins. Co. v. Brown, 30 N. J. Eq. 202, both citing Gardner v. Gardner. In a note by the learned reporter to Mutual Benefit Life Ins. v. Brown, supra, the doctrine of the principal case on this point is shown to be amply supported by authority.

The principal case is cited incidentally to the same point in Martin v. Maguire, 7 Gray, 179, where it is, therefore, held, that producing and read. ing a deed in evidence is not an admission or assertion of the genuineness of the handwriting of the signature. In Burns v. Lynde, 6 Allen, 309, the case is also cited as correctly stating the distinction between acts done by an agent in the presence and by the direction of the principal and acts done in his abBence, the former being regarded as the principal's own acts, and therefore not requiring that they should purport to be executed by attorney, while it is otherwise as to the latter. That deed executed by one partner, in a firm name, in the presence and with the assent of his copartner, binds the latter as being his immediate act, see Hart v. Withers, 21 Am. Dec. 382; Fichthorn v. Boyer, 30 Id. 300, and notes.

HUBBY V. HUBBY.

[5 CUSHING, 516.]

DELIVERY OF CHATTEL MORTGAGE TO ONE OF THREE MORTGAGEES named therein, though such delivery is stated to be for the use of such mortgagee only, is good as to all, notwithstanding the fact that the mortgage shows on its face that it was given to secure the payment of three several sums to the several mortgagees.

TRESPASS for taking and carrying away certain personal property. The defendant justified as mortgagee of the property, under a mortgage from the plaintiff to the defendant, and Han nah and William Hubby, which mortgage was offered in evidence. It was expressed to be for a certain consideration paid by each of the mortgagees, and was conditioned for the payment of several sums to be paid to each of them. The plaintiff claimed that the mortgage was never delivered to Hiram Hubby, or to any one for him, and offered evidence to show that it was delivered to Hannah Hubby for her benefit only. The judge admitted the evidence, and held that the plaintiff might show, as claimed, that the mortgage was never delivered to the defendant, or to any one for his benefit. Verdict for the plaintiff; exceptions by the defendant.

J. Wolcott, for the defendant.

E. Merwin, for the plaintiff.

By Court, SHAW, C. J. The plaintiff in the present case con. tends that the deed in question could not operate as a deed to

the defendant, on the ground that it has never been delivered, so as to inure by way of deed to him. If the deed was a valid inortgage from the plaintiff to the defendant, it affords a complete justification to him for taking possession of the goods, there being no intimation that they have been redeemed.

The evidence not being stated, it is a little difficult to understand precisely what the case was upon which the court instructed the jury. As we understand the report, it was thus: To avoid the effect of his mortgage deed, the plaintiff insisted that the same, though formally executed by him, was never delivered to Hiram Hubby, or to any one else for his benefit, and offered evidence tending to show that it was delivered to Hannah Hubby by the plaintiff, the mortgagor, after it was recorded, for her benefit only. To this the defendant objected, on the ground that if it was delivered to any one of the mortgagees, such would be in law a sufficient delivery to all the mortgagees.

The evidence was admitted; but not being stated, we are to assume that it conformed to the offer, and that the plaintiff proved by a witness that at the time of the delivery of the deed to Hannah, the grantor used words to the effect that he delivered it to her for her use, or for her use only. This is confirmed by the ruling of the judge, that as this deed, though made to three mortgagees, was made to secure a several debt due to each of them, it was competent for the plaintiff to show that it was never delivered to Hiram Hubby, or to any one for his benefit.

As we understand the instruction, this court can not concur in the opinion. The instrument purports to be a conveyance of the whole property described to the three grantees and their assigns, on one consideration moving from them all, but paid in different proportions, a conditional transfer defeasible upon the payment of several sums to each of them. Such a conveyance vested in them an interest in the goods, and whether this interest is technically a joint interest or an interest in common, is wholly immaterial. It inures to their common benefit; and should the mortgage never be redeemed by the payment of the debts, but be foreclosed, the mortgagees would hold the absolute property in the goods in the proportions of their respective debts: Donnels v. Edwards, 2 Pick. 617. Several interests may be created by a mortgage to secure several debts, but the instrument to two or more is a joint instrument: Burnett v. Pratt, 22 Id. 556.

This being the character of the instrument signed and sealed by the plaintiff, the court are of opinion, that by the delivery of it to one of the grantees, to inure, as his deed, to such grantee,

it thereby became the deed of the grantor for all the purposes expressed in it; and that it was not competent for the grantor to restrain the operation of it, as his deed, by the use of words, so as to give it effect, as his deed, to one of the grantees, and prevent it from having that effect as to the others. Any other construction would seem to be opposed to the settled rules of law; one of which is, that the effect and operation of a deed must be ascertained from its terms, and can not be varied by parol evidence. No doubt evidence aliunde, parol evidence as well as written, may be given to prove that the deed was not delivered; that it got into the hands of a grantee by fraud or by accident; which, if satisfactory, will prove that it was not the party's deed.

The deed could not be delivered as an escrow, because an escrow must be delivered to a stranger, and not to the grantee; and if delivered to a grantee, it is absolute, whatever intent may be shown in words to make it an escrow. It could not be delivered to the grantee conditionally, to take effect upon the happening of a contingency; for that would be contrary to the provisions of the instrument itself: Ward v. Lewis, 4 Pick. 518. We think it is a general rule, that a delivery of a valid instrument to one of several grantees, named in it, makes it the grantees' deed, and is, in law, a delivery to the use of all, according to its terms.

It makes no difference, in our opinion, that the grant was defeasible upon the payment of several sums to the several mortgagees. That might affect the right of redemption, and the mode of obtaining a discharge of the mortgage. But the question here is as to the effect of the deed, before redemption, upon the right of property; and we have no doubt that it vested a right of property in all the mortgagees, either as joint tenants or tenants in common, and for the purposes of this defense, it is immaterial which.

None of the cases cited for the plaintiff establish the position assumed. In the case of Roberts v. Jackson, 1 Wend. 478, evidence aliunde was admitted to show that the deed, or rather the instrument prepared, signed, and sealed in pursuance of a negotiation not carried into effect, was never delivered to anybody, and, of course, never became a deed.

Exceptions sustained.

DELIVERY OF DEED TO ONE OF TWO GRANTEES named therein, withou saying anything of the other, is held ineffectual as to the latter, so that the deed is void as to him, in Hannah v. Swarner, 34 Am. Dec. 442.

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