Martin v. Almond

• Decision Date: 31 July 1857
• Parties: MARTIN, Appellant, v. ALMOND et al., Respondents.
• Court: Missouri Supreme Court

25 Mo. 313

MARTIN, Appellant,

v.ALMOND et al., Respondents.

Supreme Court of Missouri.

July Term, 1857.

1. A deed was executed in the following form: “This indenture, made and entered into this, etc., by and between A. B. and C. D., of, etc., of the first part, and E. F., of, etc., of the second part, witnesseth, etc. In testimony whereof, the said parties of the first part have hereunto set their hands and seals the day, etc. [Signed] G. H. (seal), I. J. (seal), attorneys for A. B. and C. D.” Held, to be the deed of the principals, A. B. and C. D.

Appeal from Platte Circuit Court.

Wilson, for appellant.

Napton and Hall, for respondents.

I. The deed is the deed of the principal, Hardin D. Martin. (Townsend v. Corning, 23 Wend, 436; 4 Hill, 353; Wilburn v. Larkin, 3 Blackf. 55; Dening v. Bullett, 1 Blackf. 55; 1 Amer. L. Cas. 428.)

RYLAND, Judge, delivered the opinion of the court.

The only question in this case is whether the deed from Hardin D. Martin and Eveline Martin, his wife, to Green F. Martin, which was executed in the following manner, is the deed of the principals or not: “This indenture, made and entered into this second day of April, 1846, by and between Hardin D. Martin and Evelin Martin, of the county of Platte, and State of Missouri, of the first part, and Green F. Martin, of Jefferson county, and State of Missouri, of the second part, witnesseth,” etc. The covenants in said deed are in these words: “The said parties of the first part, for their heirs, etc., covenant and agree,” etc. The deed concludes as follows: “In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year above written. [Signed] Zadock Martin (seal), James B. Martin (seal), attorneys in part for Hardin D. Martin and Eveline Martin.”

We have no hesitation in saying that, in our opinion, this deed is the deed of Hardin D. Martin and Eveline Martin; and its execution in the manner above set forth is sufficient to show that it is the deed not of the attorneys in fact, but of the principals. This deed purports on its face to be the deed of Hardin D. Martin and Eveline Martin; they are called parties of the first part; all the covenants are made by them under that description. The in testimonium embraces them by the same description. The signatures of the attorneys being put first makes no difference. They subscribe the deed for their principals; the deed is all the way through in the name of the principals as parties of the first part; and it matters not whose names are first subscribed, the agents' or the principals'.

Judge Story, in his treatise on agency, says: “The true and best mode in such cases undoubtedly is to sign the name of the principal, ‘A. B.,’ and to add ‘by his attorney, C. D.;’ but it will be sufficient if the signature, in such cases, be ‘for A. B.’ (the principal), ‘C. D.’ the (agent); for, under such circumstances, the order of the words is not material, as the deed purports on its face to be the deed of the principal, and the intention is to execute it in his name and as his deed. Indeed, in all cases where the instrument purports on its face to be intended to be the deed of the principal, and the mode of execution of it by the agent, however irregular and informal, is not repugnant to that purport, it would probably be construed to be the deed of the principal,...