Mellen C. J.
The principal question, if not the only one, in this cause, is whether the deed made by Harper under the power of attorney from Jackson, operated to pass the estate to the tenant according to the intention of all concerned : or, in other words, whether the death of Jackson before the execution [18]*18of the deed though unknown to Harper and Little at that time,was such a determination of the power of attorney as to render the deed void and ineffectual as a conveyance of the estate.
It is admitted that a revocation of a power not coupled with an interest, will not defeat and render void those acts which are done in pursuance of it, and prior to notice of such revocation being given to the attorney. — Authorities are clear and direct on this point. The tenant contends that the same principle is applicable and ought to prevail in case of the determination of a power of attorney by the death of the constituent ;• such death not being known at the time of the execution of the conveyance made pursuant to such power; — though he frankly admits that' no case can be found which establishes that principle. — This very circumstance goes far towards shewing the legal distinction existing between- the two cases. — In the case of a revocation, the power continues good against the constituent, till notice is given to the attorney ; but' the instant the constituent dies, the estate belongs to his heirs, or devisees, or creditors 5' and their right's cannot be divested or impaired by any act performed by the attorney after the death has happened; the attorney then being a stranger to them and having no control over their property. In Watson v. King, 4 Campb. 272. it was decided by lord Ellenborough that a power of attorney, though coupled with an interest, is instantly revoked by the death of the grantor: and an act afterwards bona fide done under it by the grantee before notice of the death of the grantor is a nullity.
The counsel for the tenant has contended that thepozoer and the deed made in pursuance of it, constitute but one act. Still, this one act was not completed till months after Jackson’s death,- and is equally ineffectual on this hypothesis. The deed is therefore ineffectual to pass the estate.
But it is further urged that as Harper, the attorney, who made the deed in that capacity,- is a demandant in this action in right of his wife, who is one of the children and heirs at law of Jackson, he is estopped by the deed he has made to deny his own authority at the time of making it, and thereby destroy the effect of the conveyance ;• and that so the deed is good by estoppel against Harper, one of the demandants, and bars this action.
[19]*19This argument deserves examination. It may be observed as a correct principle of law, that Harper is not estopped by this deed, unless it be his deed; and, of course, unless he is bound by it. — In order, therefore, to shew that Harper is estopped by the deed made by him as attorney to Jackson, it must be established as law that it is his deed, — It has been stated by the counsel for the tenant as a settled principle of law, that if A. make a bond, for instance, as the attorney of B., when, in fact, he is not his attorney, it shall be considered the bond of A. and bind him. — Some cases have bpen cited in support of the position. — We apprehend this proposition is to be considered as subject to several limitations; and that it is not correct in the latitude in which it is advanced. — Before investigating this point, it is proper to remark that the deed in question is made in the most correct and proper form.' — From beginning to end it is in the name of Jackson the principal. — He speaks in the first person throughout. — He grants — he covenants — and his name is subscribed and his seal affixed to the deed. All this is done by Harper as the attorney of Jackson. — In what part of the deed does Harper undertake to grant or covenant for himself? Can the Court grant or covenant for him ? Or subject him to the consequences of having so granted or covenanted, when an inspection of the deed at once negatives these questions ? — No man can aver against a deed or explain or contradict it. — And can a Court, in construing a deed proceed pn a different principle ?
To establish the doctrine contended for, the counsel for the tenant has cited the case of Banorgee v. Hovey & al. 5 Mass. 11. —In that case Smith was part-owner of a vessel with the de„ fendants and was also supercargo. — He borrowed money of the plaintiff and gave a hond to secure the payment, and signed and sealed it for himself and the other owners, naming them.— And by the bond he undertook to bind himself and them for the payment. — The Court decided that Smith had no authority to give the bond; it did not bind the other part-owners, but it bound him. — And why should it not ? — He made the bond in his own name and actually bound himself. — So far the bond was, valid, but no farther. In the case of Hatch v. Smith and trustee, 5. Mass, 42. it dops not appear liotv the release titas execu!;-. [20]*20ed, whether in the name of the principals, or in his own name.— Besides, no definite opinion is 'given. Sedgwick J. says, “ if the “ attorney was not duly authorized, it must be his deed: and if “ not directly a release to Smith, it must be construed as a cove- “ nant for his security. — But we are all of opinion, that as this “ case is before us, we ought to presume that when one undertakes í£ to act as attorney and did so act,” he was duly authorised.”— The principle of law is much more clearly stated by Parsons C. J. in the case of Tippets v. Walker & al. 4 Mass. 595. — That was an action of covenant broken founded on an agreement entered into by the defendants as a committee of the Directors of the Middlesex turnpike corporation. In witness of the contract and its terms the defendants set their hands and seals. — The Chief Justice says, “ the decision of this cause must therefore t£ depend on the construction of the deed. — If the defendants ££ hatfe by their deed personally undertaken to pay, they must be “holden. — In the agreement,the defendants have not (if they ££ had legal authority) put the seals of the directors or the seal of the corporation, but have put their ozon seals'; it is therefore “ their deed. — And if it is not their covenant, it is not the cove- “ nant of any person or corporation.” — Again he says, “ The “ corporation are therefore not bound by this contract. The “ contract before us is a contract of some individuals for others “ if they have bound themselves they must look to their prin- “ cipals for indemnity — but they have expressly bound them- “ selves.”
In the case of Long v. Colburn, 11 Mass. 97. the defendant signed the note declared on in the following manner, viz. “ Pro Wm. Gill, J. Colburn” — And the Court decided, that unless Colburn had authority from Gill to make the note, Gill could not be bound by it: and if he had no such authority, still it would not bind Colburn ; because he
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Mellen C. J.
The principal question, if not the only one, in this cause, is whether the deed made by Harper under the power of attorney from Jackson, operated to pass the estate to the tenant according to the intention of all concerned : or, in other words, whether the death of Jackson before the execution [18]*18of the deed though unknown to Harper and Little at that time,was such a determination of the power of attorney as to render the deed void and ineffectual as a conveyance of the estate.
It is admitted that a revocation of a power not coupled with an interest, will not defeat and render void those acts which are done in pursuance of it, and prior to notice of such revocation being given to the attorney. — Authorities are clear and direct on this point. The tenant contends that the same principle is applicable and ought to prevail in case of the determination of a power of attorney by the death of the constituent ;• such death not being known at the time of the execution of the conveyance made pursuant to such power; — though he frankly admits that' no case can be found which establishes that principle. — This very circumstance goes far towards shewing the legal distinction existing between- the two cases. — In the case of a revocation, the power continues good against the constituent, till notice is given to the attorney ; but' the instant the constituent dies, the estate belongs to his heirs, or devisees, or creditors 5' and their right's cannot be divested or impaired by any act performed by the attorney after the death has happened; the attorney then being a stranger to them and having no control over their property. In Watson v. King, 4 Campb. 272. it was decided by lord Ellenborough that a power of attorney, though coupled with an interest, is instantly revoked by the death of the grantor: and an act afterwards bona fide done under it by the grantee before notice of the death of the grantor is a nullity.
The counsel for the tenant has contended that thepozoer and the deed made in pursuance of it, constitute but one act. Still, this one act was not completed till months after Jackson’s death,- and is equally ineffectual on this hypothesis. The deed is therefore ineffectual to pass the estate.
But it is further urged that as Harper, the attorney, who made the deed in that capacity,- is a demandant in this action in right of his wife, who is one of the children and heirs at law of Jackson, he is estopped by the deed he has made to deny his own authority at the time of making it, and thereby destroy the effect of the conveyance ;• and that so the deed is good by estoppel against Harper, one of the demandants, and bars this action.
[19]*19This argument deserves examination. It may be observed as a correct principle of law, that Harper is not estopped by this deed, unless it be his deed; and, of course, unless he is bound by it. — In order, therefore, to shew that Harper is estopped by the deed made by him as attorney to Jackson, it must be established as law that it is his deed, — It has been stated by the counsel for the tenant as a settled principle of law, that if A. make a bond, for instance, as the attorney of B., when, in fact, he is not his attorney, it shall be considered the bond of A. and bind him. — Some cases have bpen cited in support of the position. — We apprehend this proposition is to be considered as subject to several limitations; and that it is not correct in the latitude in which it is advanced. — Before investigating this point, it is proper to remark that the deed in question is made in the most correct and proper form.' — From beginning to end it is in the name of Jackson the principal. — He speaks in the first person throughout. — He grants — he covenants — and his name is subscribed and his seal affixed to the deed. All this is done by Harper as the attorney of Jackson. — In what part of the deed does Harper undertake to grant or covenant for himself? Can the Court grant or covenant for him ? Or subject him to the consequences of having so granted or covenanted, when an inspection of the deed at once negatives these questions ? — No man can aver against a deed or explain or contradict it. — And can a Court, in construing a deed proceed pn a different principle ?
To establish the doctrine contended for, the counsel for the tenant has cited the case of Banorgee v. Hovey & al. 5 Mass. 11. —In that case Smith was part-owner of a vessel with the de„ fendants and was also supercargo. — He borrowed money of the plaintiff and gave a hond to secure the payment, and signed and sealed it for himself and the other owners, naming them.— And by the bond he undertook to bind himself and them for the payment. — The Court decided that Smith had no authority to give the bond; it did not bind the other part-owners, but it bound him. — And why should it not ? — He made the bond in his own name and actually bound himself. — So far the bond was, valid, but no farther. In the case of Hatch v. Smith and trustee, 5. Mass, 42. it dops not appear liotv the release titas execu!;-. [20]*20ed, whether in the name of the principals, or in his own name.— Besides, no definite opinion is 'given. Sedgwick J. says, “ if the “ attorney was not duly authorized, it must be his deed: and if “ not directly a release to Smith, it must be construed as a cove- “ nant for his security. — But we are all of opinion, that as this “ case is before us, we ought to presume that when one undertakes í£ to act as attorney and did so act,” he was duly authorised.”— The principle of law is much more clearly stated by Parsons C. J. in the case of Tippets v. Walker & al. 4 Mass. 595. — That was an action of covenant broken founded on an agreement entered into by the defendants as a committee of the Directors of the Middlesex turnpike corporation. In witness of the contract and its terms the defendants set their hands and seals. — The Chief Justice says, “ the decision of this cause must therefore t£ depend on the construction of the deed. — If the defendants ££ hatfe by their deed personally undertaken to pay, they must be “holden. — In the agreement,the defendants have not (if they ££ had legal authority) put the seals of the directors or the seal of the corporation, but have put their ozon seals'; it is therefore “ their deed. — And if it is not their covenant, it is not the cove- “ nant of any person or corporation.” — Again he says, “ The “ corporation are therefore not bound by this contract. The “ contract before us is a contract of some individuals for others “ if they have bound themselves they must look to their prin- “ cipals for indemnity — but they have expressly bound them- “ selves.”
In the case of Long v. Colburn, 11 Mass. 97. the defendant signed the note declared on in the following manner, viz. “ Pro Wm. Gill, J. Colburn” — And the Court decided, that unless Colburn had authority from Gill to make the note, Gill could not be bound by it: and if he had no such authority, still it would not bind Colburn ; because he did not promise; and that the only remedy against Colburn was by a special action on the case for the deception and injury. In the case of Ballou v. Talbot, 16 Mass. 461. the defendant signed his name to the note declared on, adding thereto the words “ agent for David Perry.'" — The Chief Justice in giving the opinion of the Court says, “ It is obvious “ from the signature that it was neither given or received as the “ defomdant’s note,” and the Court observed, that the remedy [21]*21against Talbot must be a special action on the case for the inju- ' ry occasioned by his assuming the character of attorney. Justice as well as strict law seem to require that such should be the decision with respect to the deed upder consideration. Suppose that in this case Harper had paid the price of the land, which he had received of Little, over to Jackson, by remitting it to him before knowledge of his death, and his legal representa* tives had received it; — or suppose he had accepted Jackson’s draft for the amount u — and suppose that Harper’s wife were the only child and sole heiress of Jackson: now, would it not, in such case, be unjust that the deed in question, executed with good faith and in full confidence that the authority which had been given was not determined, should operate as an estoppel against Harper — deprive him of all his interest in the land— and leave -him liable to pay the draft according to his acceptance, or recover back the money, if paid, from the representatives in the best manner he could ? — In the present case, the deed being void, an action lies for Little against Harper to recover the same back again, — -The law is just in giving a remedy where there is a right. — It gives ah action against a debtor or a wrong doer and subjects him to a judgment for competent damages : though it never insures his solvency or the eventual payment of the damages, — Qu.r decision may operate severely on the tenant, and he may unfortunately lose all he has paid for the estate as well as the estate itself: if so, we can only lament his misfortune, but cannot change legal principles in order to avert it.
In the case of Stinchfield v. Little, 1 Greenl. 231. there was a full and regular power delegated to Little, to make the deed; but he made it in his own name: and not in the name of the Pejepscotproprietors, — It was therefore not their deed; but his own. — In the present case, the deed made by Harper is good in point of form, bpt void fpr want of power in him to make it: and as in no part of the deed he has bound, himself, the remedy against him must be by another form of action.
Upon the facts stated in the agreement of the parties, we are of opinion that the action is in law maintainable —but as it is suggested that the tenant has another defence on which he relies, grounded on a sale of the demanded premises under the [22]*22law of the United States by one of their collectors of direct taxes, the cause must stand for trial that the merits of that defence may bp investigated.