The opinion of the Court was delivered by
Williams, J.
The plaintiff has declared against the defendant in covenant. The declaration contains two counts. The defendant pleads performance, and tenders an issue which is joined. It was considered by the county court that this plea put the plaintiff on proof of evey material fact in his declaration. The plaintiff contends, that,under this issue, his derivative title was not denied, nor the character in which he sued. But if the plea required the plaintiff to shew a breach of the covenant declared on, and this was not questioned, he must, to shew such breach, prove an eviqtion of some one holding under Hatch j and [478] ^*'s mat^e 't necessary to prove a conveyance from Hatch to himself. The plaintiff does not sue as assignee, nor in the right of another, as an executor, or administrator, or assignee of a bankrupt, 'n n'bich case his character as assignee would not be denied under the plea. But he sues as on a covenant made with him, and coming to him with the land, by virtue of a deed from Hatch. The eviction of the plaintiff would be no breach of the defendant’s covenant with Hatch, unless plaintiff claimed title to the land through Hatch. Hence it was incumbent on the plaintiff to show ■a conveyance from Hatch, and this brings in question the validity of the instrument which was offered as Hatch’s deed to plaintiff. It seems that it was objected to, and excluded as not having been sealed.
It is first contended by the plaintiff that this was a question of fact, which ought to have been submitted to the jury. This will not bear examination for a moment. It would be submitting to the jury to say, whether writing the word seal, does in law constitute the instrument, to which it is affixed, a sealed instrument. The court must always determine whether an instrument offered in evidence has the legal requisites to make it evidence ; and although the parties may call a writing, without any seal,'a deed, and offer it in evidence as such, yet the court must adjudge that it is not a deed. When the.court have determined what constitutes a seal, the jury may then say whether it .is affixed to the instrument. If the court correctly determined that a seal should be of wax or wafer, it would then be a question -of fact for the jury, whether it was placed on the instrument; but if there was no pre-tence that a wafer or wax, or that which the court considered essential to constitute a seal, had ever been impressed on the paper offered, then it was a question of law for the court to determine whether that paper was a deed. The county court were correct in determining this question, and excluding the paper from the jury, if they were right in determining that it was not sealed. The question then arises, what constitutes a seal, and was the instrument offered sealed ? It was incumbent on the plaintiff to show ■that writing the word “ seal” at the end of his name, constituted a seal, especially as it is against the common received opinion. It would be sufficient,- to decide the point, to say that no authorities have been or can be produced from the common law of England, or from the decisions of our own courts, establishing this as .a seal. The definition of a seal, or sealed instrument, is as well (Understood as the definition of á written instrument. A learned [479] and elaborate argument has been made, and reference lias been had to legal and classical writers, to shew the origin and use of seals. Possibly there is some dispute as to the origin,and too much consequence may have been attached to them. Perhaps, the whole distinction between sealed instruments and those not under seal, may savour of the learning of former times, and possibly if a system of jurisprudence was now to be formed, the whole distinction might be abolished. But the distinction is so interwoven, with every branch of the law, and presents itself to us in so many parts, both of the statute books and the books of the common law, and is so well understood both by the learned and unlearned, by the lawyer and his client, that it would be worse that’useless to attempt to abolish it to accommodate a particular case. It is a question which will seldom arise in this state.
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The opinion of the Court was delivered by
Williams, J.
The plaintiff has declared against the defendant in covenant. The declaration contains two counts. The defendant pleads performance, and tenders an issue which is joined. It was considered by the county court that this plea put the plaintiff on proof of evey material fact in his declaration. The plaintiff contends, that,under this issue, his derivative title was not denied, nor the character in which he sued. But if the plea required the plaintiff to shew a breach of the covenant declared on, and this was not questioned, he must, to shew such breach, prove an eviqtion of some one holding under Hatch j and [478] ^*'s mat^e 't necessary to prove a conveyance from Hatch to himself. The plaintiff does not sue as assignee, nor in the right of another, as an executor, or administrator, or assignee of a bankrupt, 'n n'bich case his character as assignee would not be denied under the plea. But he sues as on a covenant made with him, and coming to him with the land, by virtue of a deed from Hatch. The eviction of the plaintiff would be no breach of the defendant’s covenant with Hatch, unless plaintiff claimed title to the land through Hatch. Hence it was incumbent on the plaintiff to show ■a conveyance from Hatch, and this brings in question the validity of the instrument which was offered as Hatch’s deed to plaintiff. It seems that it was objected to, and excluded as not having been sealed.
It is first contended by the plaintiff that this was a question of fact, which ought to have been submitted to the jury. This will not bear examination for a moment. It would be submitting to the jury to say, whether writing the word seal, does in law constitute the instrument, to which it is affixed, a sealed instrument. The court must always determine whether an instrument offered in evidence has the legal requisites to make it evidence ; and although the parties may call a writing, without any seal,'a deed, and offer it in evidence as such, yet the court must adjudge that it is not a deed. When the.court have determined what constitutes a seal, the jury may then say whether it .is affixed to the instrument. If the court correctly determined that a seal should be of wax or wafer, it would then be a question -of fact for the jury, whether it was placed on the instrument; but if there was no pre-tence that a wafer or wax, or that which the court considered essential to constitute a seal, had ever been impressed on the paper offered, then it was a question of law for the court to determine whether that paper was a deed. The county court were correct in determining this question, and excluding the paper from the jury, if they were right in determining that it was not sealed. The question then arises, what constitutes a seal, and was the instrument offered sealed ? It was incumbent on the plaintiff to show ■that writing the word “ seal” at the end of his name, constituted a seal, especially as it is against the common received opinion. It would be sufficient,- to decide the point, to say that no authorities have been or can be produced from the common law of England, or from the decisions of our own courts, establishing this as .a seal. The definition of a seal, or sealed instrument, is as well (Understood as the definition of á written instrument. A learned [479] and elaborate argument has been made, and reference lias been had to legal and classical writers, to shew the origin and use of seals. Possibly there is some dispute as to the origin,and too much consequence may have been attached to them. Perhaps, the whole distinction between sealed instruments and those not under seal, may savour of the learning of former times, and possibly if a system of jurisprudence was now to be formed, the whole distinction might be abolished. But the distinction is so interwoven, with every branch of the law, and presents itself to us in so many parts, both of the statute books and the books of the common law, and is so well understood both by the learned and unlearned, by the lawyer and his client, that it would be worse that’useless to attempt to abolish it to accommodate a particular case. It is a question which will seldom arise in this state.
Whether any definition can be given of a seal which would be sufficiently accurate to embrace every case, is unimportant. As to deeds,charters, &c., it has always been understood the seal must be of wax or wafer, something which may be impressed with an instrument used as and for a seal. Corporations act by their sea], and public documents are evidenced by a seal. In these last cases the impression of the seal may be made directly on paper without the intervention of the wafer or wax. as it is the particular impression made by the stamp which is recognised as the public seal of the corporation or public office. Possibly, some other substance may be found which will answer the purpose of a seal, as well as wax or wafer. But'merely writing the word seal will never be in general use. It can never be adopted either for a common or public seal. The decision of Chief Justice Kent, In the case of Warren vs. Lynch, 5 John. 237, and his remarks in the 4th volume of his commentaries,(page 444,) are perfectly conclusive on the question, and are as much-distinguished for sound common sense, as for legal learning. Further, we learn that this question has been determined by the Supreme Court of this State in a cause decided in Chittenden'County, between Mattocks and White,which is not reported. In those states where a scroll or flourish of the pen or circle of ink has been adopted, it has been effected either by statute, or by long usage. Such may be the law in those states; but it is not in this state,either by force of the common law or by statute. The instrument, therefore, offered in evidence as the deed oí Hatch, was not a deed or conveyance of land, as it wanted one of the essentia! requisites to constitute it a deed. The paper from Hatch to the plaintiff, having been rightly excluded by [480] the court, there is no other ground on which the plaintiff can recover of the defendant on the covenants contained in the defendant’s deed to Hatch. The argument that the.plaintiff was in possession, and, therefore, might avail himself of the covenant as running with the land, is wholly destitute of foundation. His possession, as against Hatch, may have been adverse, so that he was acquiring a title by the statute of limitations as against him; but if so, it would be, at least, singular, if he could acquire a title as against Hatch by a trespass, and, at the same time, by the same trespass, acquire a right to Hatch’s claim against the'defendant on the covenants in his deed. Although a deed from Hatch to the plaintiff might under some circumstances be presumed, yet,as presumptions are made to quiet men in possession, I do not know that it has ever been contended before, that they would create a right of action on the deed presumed. A deed might be presumed to give a legal origin to a possession ; but an instrument not under seal cannot be presumed to be a deed for the purpose of giving an action of covenant thereon, or an action of covenant on a deed farther back in the chain of title. It seems that the plaintiff had a quit-claim deed from the defendant and Hyde, dated 8th July, 1807,of one undivided moiety of the land in dispute. If he was not in possession under that deed, he was in without title, and can have no claim upon the defendant if he has not kept his covenant with Hatch, for the other moiety of the same premises. 'It is said the evidence on the seconcTcount was excluded by the court. This count appears to be decidedly bad ; and although the court may have erred in excluding the testimony altogether, and the regular course might have been to have admitted the testimony, leaving the defendant to move in arrest, or bring his writ of error, yet this court would not, on that account, grant a new trial, when we should be under obligation to arrest the judgement thereon on account of the insufficiency of the declaration. But it will be observed,that notwithstanding the pleader in framing the declaration avoided any distinct reference to the instrument which purported to be a deed from Hatch to the plaintiff, which was excluded asnot being sealed, yet,to avail hintself of the covenant made with Hatch, and entitle 'himself to shew the eviction as a breach of that covenant injurious to him, he declares that he was possessed of the part of which he was evicted, as as-signee of Hatch. To support this count, therefore, it was necessary for him to show a legal assignment from Hatch, and if he failed to introduce a regular deed from Hatch to himself, the-[481] count would fail for want of proof. This count, therefore, as well as the other, depended upon the validity of Hatch’s conveyance to the plaintiff } and that being excluded, all other testimony was irrelevant, and was properly rejected. If neither Hatch nor his grantee were evicted from the premises, the plaintiff has not become liable on his covenant to Hatch. If the plaintiff was evicted from his undivided part, he is without remedy at law, as his title to an undivided moiety was nothing more than a quit-claim deed from the defendant and Hyde, on which he has not set up any claim } and his title to the other moiety was under a writing from Hatch which the Court consider as no legal conveyance. On every view which we have been able to take of the case, we can see no remedy for the plaintiff at law } and the judgement of the county court must be affirmed,
Judgement affirmed.