Eckhart v. Reidel

• Decision Date: 01 January 1856
• Citation: 16 Tex. 62
• Parties: CÆSAR ECKHART v. MORETY REIDEL.
• Court: Texas Supreme Court

16 Tex. 62

CÆSAR ECKHART

v.MORETY REIDEL.

Supreme Court of Texas.

1856.

A bond for title to land acknowledged that Cæsar Eckhart, attorney in fact for Charles Eckhart, was held and firmly bound in the sum of, etc., conditioned that the above bound shall make or cause to be made a good and perfect title, etc., signed, sealed, etc., Cæsar Eckhart, attorney in fact for Charles Eckhart, with a scroll; held, in an action against Cæsar Eckhart to recover back the purchase money on the ground of failure to comply with the bond, that on the face of the bond the principal was bound, and not the agent. [[[[[

In this case the court allude to the distinction taken upon this subject, between instruments which are required by law to be under seal and those which are not, and say that a bond or agreement to convey land in future is not required to be under seal; but the decision is not based upon such distinction.

It seems that if an administrator gave a bond to convey the land of his intestate, he will be personally bound, on the ground that he had no authority to bind the estate.

Appeal from De Witt. This was a suit against Jonathan York and Cæsar Eckhart, for the recovery of the purchase money which had been paid, on the ground of failure to comply with the bond. The bond acknowledged that Jonathan York, administrator of the estate of John York, deceased, and Cæsar Eckhart, attorney in fact of Charles Eckhart, are held and firmly bound unto Morety Reidel in the sum of two hundred dollars, etc., given under our hands and seals this nineteenth day of January, 1850; conditioned that whereas the above bound have this day sold, etc., now, therefore, if the above bound shall make or cause to be made a good and perfect title to the within described land, etc.; signed Jonathan York, with a scroll; Cæsar Eckhart, attorney in fact for Charles Eckhart. Acknowledged before a notary by Jonathan York, administrator of the estate of John York, deceased, and Cæsar Eckhart, attorney in fact for Charles Eckhart, that they signed, sealed, etc. The other facts will be found in the opinion.

R. E. Williams, for appellant. It is admitted that the current of authorities is in favor of the position that an instrument under seal must be executed in the name of the principal, and the seal of the principal affixed, although there are very high exceptions to the rule (Magil v. Hinsdale, 6 Conn. 465; Montgomery v. Dorion, 8 New Hamp. 475); but this has never been the rule for an instrument not under seal. (New England Marine Insurance Company v. De Wolf, 8 Pick.; Townsend v. Hubbard, 4 Hill's N. Y. 351 and 357; Townsend v. Corning, 23 Wend. 436 and 440.) A seal, although a mere formality, is an essential to certain instruments, as, for instance, a deed; and it is only to such instruments as are required by law to be under seal that the technical rule has been applied; and even in these cases it is a rule not resting upon reason, but only upon authority; and the existence of the rule has been regretted by courts of the first respectability. This state not being embarrassed, so far as I am aware, with any decision on the subject, if the court should think the question raised in this case, it is respectfully submitted that the reason and effect of the rule should be well weighed before it is adopted.

But it is believed that the decision of the court below is erroneous upon the authorities. An agreement to convey lands is not an instrument required by law to be under seal. By our statute of frauds it is required to be in writing. It will hardly be contended that by putting a scroll to an instrument not required by law to be under seal, it would subject it in a court of equity to all the technical rules relating to specialties at common law. If the agent had an authority to bind the principal, and the words were such as not clearly to bind himself alone, and it can be ascertained that he intended to bind the principal, the latter will be bound. The only question when the instrument is not required to be under seal is, had the agent the authority to bind the principal, and can the intention to bind the principal be gathered from the instrument? (New England Marine Insurance Company v. De Wolf, 8 Pick. cited above.) It is therefore respectfully submitted that the instrument in question is not technically an instrument under seal.

HEMPHILL, CH. J.

This was a suit for damages for the breach of a bond or contract for the sale of land. The bond purported to be the act of Jonathan York, administrator of the estate of John York, deceased, and Cæsar Eckhart, attorney in fact for Charles Eckhart, and was signed by Jonathan York [L. S.], administrator of John York, and Cæsar Eckhart, attorney in fact for Charles Eckhart. Judgment by default was entered against York and he has not appealed. The defendant, Cæsar Eckhart, offered documentary evidence to prove that the title of the land was in his principal, Charles Eckhart, and also that he was duly constituted attorney in fact of the said Charles Eckhart. The evidence was rejected. Judgment was entered against Cæsar Eckhart personally, and the only point made on his appeal is, whether he or his principal, Charles Eckhart, was liable in the agreement.

The question as to the mode in which an attorney in fact should execute his authority was raised in the case of Byers v. Giddens' Heirs, 12 Tex. 75; and was to some extent discussed, though without the benefit, comparatively, of authorities. The counsel for appellant in this case has presented some brief but striking views, and we shall proceed to consider the subject, though without the aid of argument from the appellee. It is apparent at a glance that the law on this subject is a mass of contradiction, if not of absurdity; the rule in relation to the execution of sealed instruments by an attorney being the opposite of that recognized in the execution of unsealed or commercial contracts.

The distinction in the forms which a contract (when executed by an agent) must assume, in order to be valid and binding on the principal, is expressed by the editors of American Leading Cases (1 vol. 589), substantially as follows, viz.: A contract under seal by an agent is not binding on the principal, unless it profess to bind him and be executed in his name and as his deed. A written contract not under seal is binding on the principal, in whatever form executed, if the principal's name appear in it and the intention to bind him be apparent, but not unless his name appear in it. A verbal contract is binding on the principal if his name be disclosed, and the person making it contract as his agent and in his behalf.

In relation to sealed instruments, it is said, if a person authorized by a power to convey under seal the lands of his principal, should convey by deed in his own name, the conveyance will be void; and it will make no difference that in the deed the agent describes himself as such; as if he says, “Know all men by these presents, that I, A. B., as agent of C. D., do hereby grant, sell, convey,” etc., or if he signs and seals it A. B. for C. D.; for in such case, it is still his own deed, and not that of the principal. (Story on Agency, sec....