Inhabitants of Nobleboro v. Clark.

Cofran v. Cockran, 5 N. H. 458; Ward v. Bartholomew, 6 Pick. 409; Springfield v. Miller, 12 Mass. 415.

LIBBEY, J. In this case two questions are raised.

I. Had J. Arad Hatch authority, as agent of the plaintiff town, to execute the deed to the defendant, relied upon by him?

II. If he had such authority, did he properly execute it, so as to bind the plaintiffs, in executing the deed to the defendant ?

We think Hatch had authority to execute a deed of the demanded premises in behalf of the plaintiffs. The plaintiffs, at a legal meeting therefor, held March 16, 1874, passed the following vote: "Chose J. Arad Hatch agent to settle with the railroad company, and sell the balance of the town landing if he thinks it will be for the interest of the town to do so, and to settle all other matters with the railroad company." By this vote the authority to sell the balance of the town landing is not limited to a sale to the railroad company. It had already taken a part of town landing for its road. There is no intimation that the railroad company desired to purchase the balance.

The authority to sell is general. It is not necessary that the authority to the agent to execute a deed in behalf of his principal should be given in express terms. It is sufficient if such authority is implied from the express power given. The power to sell the lands of the principal necessarily implies, and carries with it, the power to execute a proper deed to carry the sale into effect. Marr v. Given, 23 Me. 55; Valentine v. Piper, 22 Pick. 85.

Is the deed to the defendant of the demanded premises properly executed by Hatch? The sale was made by him to the defendant. He paid for the land. The plaintiffs received and retain the money. The deed should be upheld, if it can be consistently with the rules of law. It was early settled in Massachusetts that a deed executed by an attorney, to be valid, must be made in the name of his principal. Fowler v. Shearer, 7 Mass. 14; Elwell v. Shaw, 16 id. 42; Brinley v. Mann, 2 Cush. 337.

After a careful examination of the English and American. authorities by the court, the same rule was affirmed as the law of this State in Stinchfield v. Little, 1 Me. 231. In Decker v. Freeman, 3 id. 338, this court, while declaring the rule as determined in Elwell v. Shaw, and Stinchfield v. Little, to be the settled law of this State, say: "But we are not disposed to

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Inhabitants of Nobleboro v. Clark.

extend it to cases fairly distinguishable from those which have been cited." The grantors named in the deed then under consideration were "the proprietors of the township lately called Pearsontown but now Standish, by Benjamin Titcomb, Samuel Freeman and Joseph Holt Ingraham, a committee legally appointed," etc.: and the attestation clause was as follows: "In witness whereof, the said proprietors, by their committee aforesaid, who subscribe this deed in the name and behalf of said proprietors, have hereunto set their hands and seals ;" and the committee signed their own names only. It was held to be the deed of the proprietors of the town. After commenting on the several clauses of the deed, the court, WESTON, J., says: "The committee, therefore, do not act in their own name, but in the name of the principal, and that is all that the rule of law requires ;" and he quotes from Wilks v. Back, 2 East, 142, that "there is no particular form of words required to be used, provided the act be done in the name of the principal."

In Haven v. Adams, 4 Allen, 80, the deed then under consideration named the Grand Junction Railroad and Depot Company, a corporation, etc., as grantor, and the attestation clause was thus: "In testimony whereof, said party of the first part have caused these presents to be signed by their president, and their common seal to be here to affixed. Samuel S. Lewis, President." [Seal.] The court held the deed to be well executed as the deed of the corporation. CHAPMAN, J., in the opinion of the court, after commenting on Brindley v. Mann, supra, and Abbey v. Chase, 6 Cush. 54, says: "The question in such cases is, whether the deed purports to be the deed of the principal, or the deed of the agent executed by him in behalf of the principal. In the first case, it is held to convey their property because it is their deed; in the latter case, it does not convey their property, because it is his deed. It is always a mere question of construction. In this case, it purports to be their deed, and it therefore conveys their title."

In Montgomery v. Dorion, 7 N. H. 475, the deed purported to convey the premises to the petitioner by Joseph Dorion, but was executed as follows: "In testimony of the foregoing, I. Winslow, Jr., being duly constituted attorney for the purpose, by all the foregoing grantors, has hereunto set his hand and seal. Isaac Winslow, Jr." [Seal.] RICHARDSON, C. J., in delivering the opinion of the court, says: "In this case, in testimony that the

Inhabitants of Nobleboro v. Clark.

grantors, who are named as such in the deed, make the conveyance, the agent puts his hand and seal to the instrument. This seems to be tantamount to putting his hand and seal to the deed for them, which is sufficient." In Hale v. Woods, 10 N. H. 470, the deed was signed David King, attorney for Zachariah King. The court said that the deed of an attorney, to be valid, must be in the name, and purport to be the act and deed of the principal; but whether such is the purport of an instrument, must be determined from its general tenor, and not from any particular clause.

In Deming v. Bullitt, 1 Blackf. 241, it was said that in determining who were parties to a deed executed by an attorney, as in ascertaining the nature and effect of it, recourse must be had to the whole instrument.

In Hunter v. Miller, 6 B. Monr. 612, the instrument was signed "W. S. H., seal, for T. T. & M. H.," but the body of the instrument stated that the principals were to convey. The eourt held that it did not bind the agent, and laid down the following rule, that “if it clearly appears on the face of the instrument who is intended to be bound, and if the mode of execution be such as that he may be bound, the necessary consequence of the universal principle applicable to contracts is, that he is bound, and that, if such appears to be the intention of the parties, he alone is bound."

It is contended by the counsel for the defendant that the rigid, technical, common-law rule has been relaxed by the provisions of our statutes. R. S., ch. 1, § 4, clause XXI, is a rule for the construction of statutes and not of contracts. Sections 10 and 15 of ch. 73 are as follows: Sec. 10. "There can be no estate created in lands greater than a tenancy at will, and no estate in them can be granted, assigned or surrendered, unless by some writing signed by the grantor, or maker, or his attorney;" Sec. 15. "Deeds and contracts, executed by an authorized agent of an individual or corporation, in the name of his principal, or in his own name for his principal, are to be regarded as the deeds and contracts of such principal." Section 15 was derived from the act of 1823, ch. 220, which was as follows: "All deeds, bonds, contracts and agreements, purporting to be made and executed by any agent, attorney or committee, for and in behalf of any other person or corporation, shall be considered as the deed, bond, contract or agreement of the principal or constituent, and not of the agent, attorney or com

Inhabitants of Nobleboro v. Clark.

mittee, notwithstanding the same may have been signed, sealed and acknowledged in the name of the agent, attorney or committee; provided it appear by said deed, bond, contract or agreement, to have been the intention of the parties to bind the principal or constituent." This act was passed soon after the decision of Stinchfield v. Little, supra, and was undoubtedly intended to modify the technical rule of the common law as declared by the court in that case. The construction of sec. 15 was before this court in Sturdivant v. Hull, 59 Me. 172; s. c., 8 Am. Rep. 409; and BARROWS, J., in delivering the opinion of the court, after stating the provision of the act of 1823, says: "We do not think that the true intent, meaning and application of these provisions, as originally enacted, have been changed in the subsequent revisions of 1857 and 1871." The two statutes should receive the same construction. The intention of the parties to bind the principal or constituent, -that the deed or contract should be his deed or contract-must appear by the deed or contract itself, and no evidence aliunde, except evidence of the authority of the agent or attorney, can be received to show such intent.

Applying the principles settled by the courts, and the provisions of our statute to the question under consideration, we think the true rule in this State is that where a deed is executed by an agent or attorney, with authority therefor, and it appears by the deed that it was the intention of the parties to bind the principal or constituent, that it should be his deed and not that of the agent or attorney-it must be regarded as the deed of the principal or constituent, though signed by the agent or attorney in his own name. In determining the meaning of the parties, recourse must be had to the whole instrument- the granting part, the covenants, the attestation clause, the sealing and acknowledgment, as well as the manner of signing. If signed by the agent in his own name, it must appear by the deed that he did so for his principal: This may appear in the body of the deed as well as immediately after the signature.

Applying this rule to the deed under consideration, we have no doubt that it must be regarded as the deed of the inhabitants of Nobleboro. They "remise, release, bargain, sell and convey." In witness whereof, they, "by the hand of J. Arad Hatch of said Nobleboro, hereunto duly authorized, have hereunto set their seal, and the said J. Arad Hatch has hereunder subscribed

* * *

Simonton v. Loring.

his name." Hatch, as agent of said town, acknowledged the instrument to be the free act and deed of the inhabitants of the town. These provisions of the deed are tantamount to an assertion that he signed the deed in behalf of the town. There is nothing in the deed tending to show that he signed for himself. In witness of the grant by the inhabitants of the town, he, as their agent, affixed their seal and signed his name. It sufficiently appears by the deed that the agent executed the deed in his own name for his principals.

Exceptions sustained.

APPLETON, O. J., WALTON, BARROWS, VIRGIN and PETERS, JJ., concurred.

SIMONTON V. LORING.

(68 Me. 164.)

Negligence — injury to lower tenement by negligence of upper tenant.

The servant of the occupants of an upper tenement accidentally left open a faucet, thereby causing the water to overflow and flood the tenement below. Held, that the occupants of the upper tenement were liable for the damage thereby done. (See note, p. 32.)

A. A. Strout and G. F. Holmes, for plaintiffs.

M. M. Butler and C F. Libby, for defendants.

VIRGIN, J. In June, 1875, the plaintiffs with their stock of goods occupied the first floor of the Stewart block, 565 Congress street, Portland, and the defendants the hall in the third story, together with the appurtenances thereto, including a urinal supplied with Sebago water. In the night of June 20, the faucet in the closet regulating the flow of water into the urinal having been left wide open, and the efflux, from some cause, not being equal to the influx, the water overflowed the bowl and flooded the plaintiffs' store and injured their stock.

The defendants had possession, control and management of the