Clough v. Clough

• Decision Date: 29 May 1882
• Citation: 73 Me. 487
• Parties: JOSEPH E. CLOUGH and others v. WILLIAM M. CLOUGH.
• Court: Maine Supreme Court

73 Me. 487

JOSEPH E. CLOUGH and others v. WILLIAM M. CLOUGH.

Supreme Judicial Court of Maine.

May 29, 1882

ON REPORT.

Writ of entry, dated September 3, 1880.

Plea general issue.

At the trial the defendant offered in evidence the deed of John Clough to him. The plaintiffs objected to the deed upon the ground that it was not properly executed. For the purposes of this trial it was admitted that the name of the grantor in the deed was signed by the grantee, at the grantor's request and in his presence, and that the grantor personally acknowledged the deed, and that it was duly delivered to the defendant. The case was then submitted to the law court. If such a deed is valid in law, the case is to stand for trial if not, default is to be entered.

A P. Gould, for the plaintiffs, contended that when one person writes the name of another at his request, he does it as agent.

Thus if A writes B's name to a deed, to assert that because B is present, giving personal and verbal authority to A, A becomes B, that it is B's own act precisely as if no person was acting but himself, and no act of agency is done, is too transparent a sophism to be adopted by a court of law.

The grantee cannot take the acknowledgment of the grantor. Beaman v. Whitney, 20 Me. 413; Gibson v. Norway Savings Bank, 69 Me. 579.

How vastly more important that the signature of the grantor should be affixed by a disinterested person. A deed is good without acknowledgment, that being required simply before recording. See Wash. Real Prop. (2 ed.) 601, (575.)

To allow the grantee to act as agent of the grantor in executing the deed, would be a violation of one of the cardinal rules of the law of agency.

C. E. Littlefield, for the defendant, cited: Bird v. Decker, 64 Me. 552; Lovejoy v. Richardson, 68 Me. 386; Bartlett v. Drake, 100 Mass. 174; Holbrook v. Chamberlain, 116 Mass. 155; Wellington v. Jackson, 121 Mass. 159; Allum v. Perry, 68 Me. 234; Wood v. Goodridge, 6 Cush. 117; 3 Wash. Real Prop. 120.

WALTON J.

The only question is whether a deed can be made valid by subsequent acknowledgment and delivery, when the name of the grantor has been signed to it by the grantee. We think it can.

If one acknowledges and delivers a deed which has his name and a seal affixed to it, the deed is valid. No matter by whom the name and seal were affixed. No matter whether with or without the grantor's consent. The acknowledgment and delivery are acts of recognition and adoption, so distinct and emphatic, that they will preclude the grantor from afterward denying that the signing and sealing were also his acts. They are his by adoption. Without delivery the instrument has no validity. By force of our statutes the instrument is incomplete without acknowledgment. Till one or both of these acts are performed the instrument has no more validity than a blank deed. By taking the instrument in this incomplete condition and completing it, the grantor makes it his deed in all its particulars. He adopts the signature and the seal the same as he does the habendum and the covenants which were inserted by the printer of the blank. The deed is not sustained on the ground of ratification, but adoption. Ratification applies to agency. No question of agency arises in this class of cases. The validity of the deed cannot rest upon the ground of agency or ratification. If such...