Hemphill, Ch. J.
The main ground of objection to the instrument was in the particular form in which it was executed by the agent, viz.: that instead of its being signed James B. Floyd for Wesley P. Byers, it should have been signed Wesley P. Byers by James B. Floyd.
The rule as to the mode of execution, as laid down in Story on Agency, is, that in written contracts, (subject to qualifi[81]*81cations and exceptions) in order to bind the principal the instrument must purport on its face to be his contract, his name must be inserted in it, and signed to it, and not merely the name of the agent, even though the latter be described as agent, in the instrument; at least, the terms of the instrument should clearly show that the principal is intended to be bound thereby, and the agent acts plainly as his agent in executing it; (Sec. 147;) and in Section 148, it is said that this rule is true in regard to solemn instruments under seal, although not so as to instruments not under seal; and that a deed for lands, signed A. B. for C. D. is the deed of the agent, not of the principal. It is added, however, in substance, that where a release is executed for a valuable consideration under a power of attorney by the agent in his own name, though not binding in law on the principal, yet it will be recognized in equity, and the principal will "be compelled to execute a release in his own name, or the agent to execute a proper release, or such relief be given as is adapted to the circumstances. In subsequent sections, that learned jurist, shows that the rule is not applicable to unsolemn instruments, and especially of commercial and maritime contracts; and in these, if it can, from the whole instrument, be collected that the intention is to bind the principal and not the agent, Courts of Justice will adopt that construction of the contract. Thus, where a promissory note is signed A. B., agent for C.' D., it is held to be the note of the principal, and not of the agent. And in "Section 162, it is asserted as a general rule, that in all eases where an agent has contracted within the sphere of his agency, and the principal is not by the form of the contracts bound at law, a Court of Equity will enforce it against the principal, upon principles ex aequo et bono.
The defendants contend that this deed, though inoperative in law, is binding in equity, and should have been admitted as evidence; and in support of this position, they rely on authorities not accessible to this Court, but which were produced in argument, and extracts have been inserted in their [82]*82briefs. The first authority, as cited by counsel, is from the 1st American Leading Cases, 432, and is to the effect that in equity, on the ground of aiding the defective execution of a power, relief is given in cases where deeds are by mistake sealed and delivered in the name of the attorney instead of the principal. An agreement under seal, by an attorney for a principal, inoperative at law for want of a formal execution in the name of the principal, is binding in equity, if the agent had authority. A conveyance which, by being executed in the name of an attorney, transfers no interest at law, will be sustained in equity, as an agreement, and be -good against the principal and subsequent creditors. (Ib.) And 1st Dana, 365, is also cited as authority for the position, that, if an agent sign by his own name with descriptions person® (as I. T. J. as attorney for J. T.) to a bond for a conveyance, though this is but the bond of the agent, yet if he was authorized to bind the principal, the latter will be held in equity to a specific execution.
It appears surprising, that in any enlightened system of jurisprudence, it should have ever been held that the particular mode of executing an instrument, under a power of attorney, should have the opposite effects of binding or absolving the principal, or making it in the one case the contract of the principal, in the other that of the agent, although on any plain common sense construction of the languáge and acts of the agent, it might be manifest that he was acting not for himself, but for the principal and under his authority. Can any phrase or act demonstrate more clearly the fact of agency, than his signature as agent, as thus A. B. for C. D., or A. B. agent for C. D. Is the fact that one is principal and the other agent shown more clearly by the signature of the name of the principal first and that of the agent afterwards, than it is by signing the agent’s name first and the principal’s last ? or, in other words, does the signature thus, C. D. by A. B., show more clearly that C. D. is the principal and A. B. the agent, than does the signature in this form, A. B. agent for C. D. ? [83]*83In either case and in all cases in which an agent acts as such, it is the agent who acts. The principal is made to act but .only through the agent; and whether the expression be that the principal is acting by the agent, or that the agent is acting for him, it is still but the act of the agent. Express it as you may, whether it be said that he is acting as agent for C. D., or that C. D. is acting through or by him, it all amounts to the same thing. If any act is done, it must be done by the agent at last; and if it be within the scope of his authority, it must stand as the act of the principal and be ratified and confirmed by him.
The fact of the execution of the power in either the one mode or the other, makes no difference and has no effect any where except in the hard, naked regions of the Common Law, and there only as to instruments under seal. Ro such sophistical distinctions and absurdities are tolerated in relation to instruments not under seal, executed by an agent in commercial or maritime contracts, and, in fact, in contracts affecting the ordinary transaction of life. Such distinction is repudiated by the doctrines and principles of equity. It was totally unknown to the Spanish law, and is believed to have no existence in any system of jurisprudence derived from the Roman fountains.
Let us briefly examine this assignment. The agent therein expressly confirms the right, title, claim and interest in and to said judgment from him, the said Wesley P. Byers, unto her, the said Aldanne Hughart. But how does he do this ? On his individual right or capacity ? Rot at all, for he expressly declares it to be by the power vested in him by the power of attorney, legally authenticated, from the said Byers unto himself, the said agent. Could the fact of his agency and that Byers was principal, appear more perspicuously by any other phraseology, or by the averment that Byers, himself, by Floyd, as agent, confirmed the right and title in said judgment ?
From the doctrines, as cited from Story and the other au[84]*84thorities, it appears that in equity the defective execution of < this power (if it be defective) would be aided, and a specfic execution of the contract decreed against Byers and his heirs. The question then arises, whether the equitable rights of the parties, under this assignment, admitting it be defective and inoperative at law, could be set up against the legal rights of the plaintiffs in an action of trespass to try title. There is no doubt that this inquiry must be responded to in the affirmative. It is perfectly immaterial whether the rights of the parties be legal or equitable. Whether they be the one or the other, they can be asserted in any cause in which they arise, or in which they can arise under the rules and principles of either law or equity.
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Hemphill, Ch. J.
The main ground of objection to the instrument was in the particular form in which it was executed by the agent, viz.: that instead of its being signed James B. Floyd for Wesley P. Byers, it should have been signed Wesley P. Byers by James B. Floyd.
The rule as to the mode of execution, as laid down in Story on Agency, is, that in written contracts, (subject to qualifi[81]*81cations and exceptions) in order to bind the principal the instrument must purport on its face to be his contract, his name must be inserted in it, and signed to it, and not merely the name of the agent, even though the latter be described as agent, in the instrument; at least, the terms of the instrument should clearly show that the principal is intended to be bound thereby, and the agent acts plainly as his agent in executing it; (Sec. 147;) and in Section 148, it is said that this rule is true in regard to solemn instruments under seal, although not so as to instruments not under seal; and that a deed for lands, signed A. B. for C. D. is the deed of the agent, not of the principal. It is added, however, in substance, that where a release is executed for a valuable consideration under a power of attorney by the agent in his own name, though not binding in law on the principal, yet it will be recognized in equity, and the principal will "be compelled to execute a release in his own name, or the agent to execute a proper release, or such relief be given as is adapted to the circumstances. In subsequent sections, that learned jurist, shows that the rule is not applicable to unsolemn instruments, and especially of commercial and maritime contracts; and in these, if it can, from the whole instrument, be collected that the intention is to bind the principal and not the agent, Courts of Justice will adopt that construction of the contract. Thus, where a promissory note is signed A. B., agent for C.' D., it is held to be the note of the principal, and not of the agent. And in "Section 162, it is asserted as a general rule, that in all eases where an agent has contracted within the sphere of his agency, and the principal is not by the form of the contracts bound at law, a Court of Equity will enforce it against the principal, upon principles ex aequo et bono.
The defendants contend that this deed, though inoperative in law, is binding in equity, and should have been admitted as evidence; and in support of this position, they rely on authorities not accessible to this Court, but which were produced in argument, and extracts have been inserted in their [82]*82briefs. The first authority, as cited by counsel, is from the 1st American Leading Cases, 432, and is to the effect that in equity, on the ground of aiding the defective execution of a power, relief is given in cases where deeds are by mistake sealed and delivered in the name of the attorney instead of the principal. An agreement under seal, by an attorney for a principal, inoperative at law for want of a formal execution in the name of the principal, is binding in equity, if the agent had authority. A conveyance which, by being executed in the name of an attorney, transfers no interest at law, will be sustained in equity, as an agreement, and be -good against the principal and subsequent creditors. (Ib.) And 1st Dana, 365, is also cited as authority for the position, that, if an agent sign by his own name with descriptions person® (as I. T. J. as attorney for J. T.) to a bond for a conveyance, though this is but the bond of the agent, yet if he was authorized to bind the principal, the latter will be held in equity to a specific execution.
It appears surprising, that in any enlightened system of jurisprudence, it should have ever been held that the particular mode of executing an instrument, under a power of attorney, should have the opposite effects of binding or absolving the principal, or making it in the one case the contract of the principal, in the other that of the agent, although on any plain common sense construction of the languáge and acts of the agent, it might be manifest that he was acting not for himself, but for the principal and under his authority. Can any phrase or act demonstrate more clearly the fact of agency, than his signature as agent, as thus A. B. for C. D., or A. B. agent for C. D. Is the fact that one is principal and the other agent shown more clearly by the signature of the name of the principal first and that of the agent afterwards, than it is by signing the agent’s name first and the principal’s last ? or, in other words, does the signature thus, C. D. by A. B., show more clearly that C. D. is the principal and A. B. the agent, than does the signature in this form, A. B. agent for C. D. ? [83]*83In either case and in all cases in which an agent acts as such, it is the agent who acts. The principal is made to act but .only through the agent; and whether the expression be that the principal is acting by the agent, or that the agent is acting for him, it is still but the act of the agent. Express it as you may, whether it be said that he is acting as agent for C. D., or that C. D. is acting through or by him, it all amounts to the same thing. If any act is done, it must be done by the agent at last; and if it be within the scope of his authority, it must stand as the act of the principal and be ratified and confirmed by him.
The fact of the execution of the power in either the one mode or the other, makes no difference and has no effect any where except in the hard, naked regions of the Common Law, and there only as to instruments under seal. Ro such sophistical distinctions and absurdities are tolerated in relation to instruments not under seal, executed by an agent in commercial or maritime contracts, and, in fact, in contracts affecting the ordinary transaction of life. Such distinction is repudiated by the doctrines and principles of equity. It was totally unknown to the Spanish law, and is believed to have no existence in any system of jurisprudence derived from the Roman fountains.
Let us briefly examine this assignment. The agent therein expressly confirms the right, title, claim and interest in and to said judgment from him, the said Wesley P. Byers, unto her, the said Aldanne Hughart. But how does he do this ? On his individual right or capacity ? Rot at all, for he expressly declares it to be by the power vested in him by the power of attorney, legally authenticated, from the said Byers unto himself, the said agent. Could the fact of his agency and that Byers was principal, appear more perspicuously by any other phraseology, or by the averment that Byers, himself, by Floyd, as agent, confirmed the right and title in said judgment ?
From the doctrines, as cited from Story and the other au[84]*84thorities, it appears that in equity the defective execution of < this power (if it be defective) would be aided, and a specfic execution of the contract decreed against Byers and his heirs. The question then arises, whether the equitable rights of the parties, under this assignment, admitting it be defective and inoperative at law, could be set up against the legal rights of the plaintiffs in an action of trespass to try title. There is no doubt that this inquiry must be responded to in the affirmative. It is perfectly immaterial whether the rights of the parties be legal or equitable. Whether they be the one or the other, they can be asserted in any cause in which they arise, or in which they can arise under the rules and principles of either law or equity. And that party must be victor in the contest, whose rights are such, whether they be legal or equitable, as would entitle him ultimately in either Courts of law or equity, to recover the property and possession of the land.
If the execution of this instrument be defective, it would' at least have the effect of an agreement in equity; and this being executed on a valuable consideration already paid, is a good defence against the action, and will protect the defendants against all disturbance of their possession. If this instrument was rejected on the ground of the supposed defective execution of the power, such rejection was unquestionably erroneous.
Another objection to the instrument is, that it was not authorized by the powers vested in the agent; that his powers, though general, were not sufficiently broad to authorize him to annul deeds, and set aside purchases already made, &c. It appears from the letter of attorney, that the grants in it are very ample. The agent is authorized to do and transact all and singular the business of the principal, of every nature and description, and to make any sales or purchases for him and in his name. The annulling of the sales under the execution was in effect nothing but the re-sale of the lands to Hughart, or rather the sale of them to his wife. For this she had paid a valuable consideration out of her own property, not liable to [85]*85the debts or executions of her husband. It is true that she did not pay the full amount originally due on the execution, but she advanced a large sum, and it was for the plaintiff in execution or his agent to determine whether it was sufficient to induce him to relinquish his rights under the judgment and execution and the sales thereupon made. He exercised his judgment, and determined to accept the consideration and transfer his rights. And the agent having sufficient powers to perform this act, it cannot be gainsayed or repudiated by the principal or his heirs.
Were this judgment permitted to stand, its effect would be to strip Mrs. Hughart of nine hundred and twenty-six dollars, without any consideration or compensation offered or paid. Upon the character of such a transaction it is unnecessary to comment. It is one which can receive no countenance or aid from Courts of equity or justice. Believing that the Court erred in excluding the instrument offered in evidence, it is ordered that the judgment be reversed and the cause remanded for a new trial.
Eeversed and remanded.