Doksey, J.
at this term delivered the opinion of the Court, It being conceded in argument, (as is unquestionably settled by authority,) that the receipt in a deed, for the conveyance of land, is only prima facie, and not conclusive evidence of the payment of the purchase money; in determining this cause, two questions only are necessary to be considered; and these, it must be admitted; are neither free from difficulty nor doubt.
Has the defendant signed a note or memorandum in writing of the agreement, as required by the statute of 29 Car. II, ch. 3? is the question which first presents itself. The nature of the requisite signature, m cases analogous to that now before us, although again and again examined and discussed in England^ and elsewhere, does not appear heretofore to have been the subject of judicial scrutiny in this state. In Lemayne. vs. Stanly, 3 Lev. 1, among the first cases upon the subject which arose after the statute, and which occurred only four years from its passage, after several arguments It was adjudged, that a will of lands in fee, in the handwriting of the testator, beginning “In the name of God, Amen. I John Stanley make this my last will and testament,” &c. not subscribed by the testator, but subscribed by three witnesses in his presence, Was a good will. “For (in the language of the court,) being written by himself, and his name in the will, ’tis a sufficient signing within the statute, which does not appoint where the will shall be signed, in the top, bottom or margin, and therefore-a signing in any part is sufficient. ” This case turned on the construction of the fifth [146] section of the Statute of Frauds. The case before us depends on the intrepretation of the fourth section, but the phraseology of both sections, as respects signing, is equally imperative, and substantially the same. In Knight vs. Crockford, 1 Esp. Rep. 190, the doctrine of Lemayne vs. Stanley is established in a case arising under the fourth section. At the trial the plaintiff produced a memorandum of the agreement, beginning “I James Crockford, agree to sell,” &c. but signed only by the plaintiff, and witnessed by one Mills. On the objection that the agreement was void within the Statute of Frauds, as not being signed by the defendant, it only beginning "I James Crocks ford agree,” &c. and not having his name subscribed to it, Eyre, Chief Justice, held “that the agreement contained a sufficient signing within the Statute of Frauds, by beginning in the defendant’s own handwriting, "I James Crockford agree,” &c. In Bawdes vs. Amherst, 1 Eq. Ca. Ab. 21, Lord Chancellor Cowper said, “he knew of no. case where an agreement, though wrote by the party himself, should bind, if not signed, or in part executed by him;” adding, that the agreement was susceptible of alterations or additions, and might have been entirely broken off.
Alterations made by the defendant in his own handwriting in the draught of an agreement, and a delivery thereof to an attorney to he engrossed, were held not to be a, signing within the statute, in Hawkins vs. Holmes, 1 P. Wms. 770. In reply to the argument of the plaintiff’s counsel on the plea of the Statute of, Frauds and Perjuries, Mr. Williams answers, “that the statute requires that the party, or ,some person by him lawfully authorised, should sign the writing; and though the defendant had altered the draught with his own hand, yet this could not be called a signing; that, the statute requires signing as a material circumstance, which is not to be dispensed with in equity any more than at law; that if the defendant had himself wrote over the whole deed with his own hand, without signing it, this had not been sufficient; for the statute has made signing absolutely necessary for the completion of the contract J for which purpose I cited the case of Ithel vs. Potter.”
Referring to the case of Hawkins vs. Holmes, 1 P. Wms. 770, and Ithel vs. Potter, as there cited, Sugden, in his valua[147] ble treatise upon the Law of Vendors, 55, (73,) states, that “the mere altering the draft of the conveyance will not take a case out of the statute; neither will the writing over of the whole draft by the defendant with his own hand, be sufficient, as there must be a signature. To this rule (he adds.) we may pérhaps refer the case of Stokes vs. Moore, 1 Cox, 219, where the defendant wrote instructions for a lease to the- plaintiff, in these words, viz. “The lease renewed; Mr. Stokes to pay the King’s tax; also to pay Moore £24 a year, half yearly; Mr; Stokes to keep the house in good lenantable repair, &c. Stokes, the lessee, filed a bill for a specific performance; and'the court of exchequer held it not to be a sufficient signing, to take the agreement out of the statute;” although it was not necessary to decide the point. In Stokes vs. Moore, the Lord Chief Baron, in delivering his opinion says, “this is no formal signature of the defendant’s name, ahd the question is, whether so inserted and written by the defendant, is a sufficient signing? The purport of the statute- is manifest, to avoid all parol agreements, and that none should have effect hut-those signed in the manner therein specified. It is argued' that" the name being inserted in any part of the writing is a sufficient signature. The meaning of the statute is, that it should amount to an acknowledgment by the party, that it is his agreement, and if the name does not give such authenticity to the instrument, it does not amount to what the statute requires.” In the same case and to the same effect is Baron Eyre equally explicit. “The signature, (says lie,) is to have the effect of giving authenticity to the whole instrument; and if the name is inserted so as-to have that effect, I do not think it signifies much in what part of the instrument it is to be found-; it is perhaps difficult, except in the case of a letter with a postscript, to find an instance where the name inserted in the middle of a writing, can well have that effect; and there the name being generally found in a particular place by the common usage of mankind, it may very probably have the effect of a legal signature, and extend to the whole; but I do not understand how a name inserted in the body of an instrument, and applicable to particular purposes, can amount to such an authentication as is required by the statute.” The case, however, was decided on the ground, that the memorandum was [148] not the whole or final agreement between the parties. Roberts, in his treatise on the Statute of Frauds, 121, in commenting ' on the signing required by the statute, tells us “the place of the signature seems not to have been regarded as of much importance, If the name is inserted in any part of the instrument, it may operate as a signing under the Statute of Frauds? but then it must have been inserted for the clear and only purpose of giving authenticity to the instrument." The same principle is sanctioned by Sugden, in his Law of Vendors 56, (74;) and is recognized in Ogilvie vs. Foljambe, 3 Merivale, 52, in which the Master of the Rolls states, “it is admitted, that provided the name be inserted in such manner as to have the effect of authenticating the instrument, the provision of tire act is complied with, and it does not much signify in what part of the instrument the name is to be found."
If the correctness of this general rule be admitted, for the establishment of which it must be confessed that the authorities, herein before referred to, are of the most imposing character, it cannot be contended, that the writing, upon which this action is founded, takes the case without the statute, as in no part of it is the name of the defendant written for the purpose of giving it authenticity, or acknowledging it to be genuine, But if these authorities be minutely and separately examined, they are not of that conclusive nature, which might be ascribed to thepi on a more superficial examination. The cases of Lemayne vs. Stanley, and Knight vs. Crockford, simply show, that a technical or formal signature is not requisite, and that a will of agreement without the subscription of the party making it, commencing, “I, A B,’* &c. if in his own handwriting, is sufficiently signed. Nothing is sáid ót ány general rule by which cases of this nature are to be tested.
,The doctrine of Lord Chancellor Cowper, in Bawdes vs. Amherst, if received with the meaning usually ascribed to it,' viz. that a formal signature is necessary, is contradicted by Le~ •mayne vs. Stanley, Knight vs. Crockford, Saunderson vs.' Jackson, and another, 2 Bos. fy-Pull. 238, and Ogilvie vs^. Foljambe; and is denied to be law by Lord Hardtoicke iii Welford vs. Bedzely, 3 Atk. 503, and its repudiation has been sanctioned by all subsequent writers upon the subject.
[149] Hawkins vs. Holmes differs from the present case in many essential particulars. There the instrument was in the hand» writing of a stranger to the contract, and not of the party against whom it was attempted to be enforced. It does not appear, (nor, from the nature of the transaction is it at all probable that it were so,) that the writing of his own name was any part of the alterations made; nor if it were, that it was so inserted as to govern or be applicable to all the provisions of the contract.
Ithel vs. Potter not being reported, we know not that its facts bore any analogy to those now under consideration. ’Tis true Mr. Sugden understood Mr. Williams as asserting, that in Ithel vs. Potter it was determined, that the writing over the whole draft by the defendant, with his own hand, will not be sufficient. But the language of Mr. Williams would bear, and is perhaps grammatically more susceptible of a different interpretation, viz. — that the only purpose for which Ithel vs. Potter was cited, was as establishing the immediately preceding legal position, that ‘‘the statute has made signing absolutely necessary for the completion of the contract;” and that the assertion of Mr. Williams, that the writing over the whole draft by the defendant, with his own hand, will not he sufficient, was an inference of counsel by way of argument, supposed to be deducible from the decision in Ithel vs. Potter, that signing was absolutely necessary. At all events an equivocal statement of a case, in the argument of counsel, which has never been reported, is an authority of the most feeble character.
The bearing of the decision in Stokes vs. Moore is certainly not so easily" obviated; as the similitude of that case to the one now before us, is much greater than that of any other of the cases herein before referred to. But of the doctrine in that ease Lord Eldon is reported to have said he had some doubt. (Vide Sug. Ven. (55,) 73.) It may also be added, that the decision is in the nature of an obiter dictum, as the decree was pronounced, and bill dismissed, on the ground that the memorandum did not contain the whole or final agreement between the parties. Admit, however, the decision to he correct, and made too because the signing was not sufficient, it does not set-[150] tie the question now in controversy; the name, as, there inserted,was only, applicable to particular purposes, and did not necessarily connect; itself with, and operate on every other part of the:,agreement. In Ogilvie vs. Foljambe, the Master of'the Rolls, in, a part, of,his opinion, sanctions the inference, that he did not use the word authenticating in. its-usual literal import, but in a sense entirely consistent with the plaintiff’s right to recover.
This general rule as to what must be the object in writing the name which is necessary to constitute a signing within the statute is of modern origin and first presents itself in Stokes vs. Moore, decided in 1786; and is afterwards adopted by Sugden and Roberts, and by Sir Samuel Romilly in arguing the Case of Morrison vs Tumour, 18 Ves. 180, in which he states that “a man thus describing himself in the third person, has never been decided to have signed within the act of parliament, which requires a signature as attesting what he has written. It is not necessary to sign it as an agreement; but he must sign. In the instance of the will, the name though in the beginning, authenticated the whole instrument, as that by which the testator meant to abide as his will, which is very different from a name occurring in the third person.”
The object of the statute being to substitute written for oral evidence, and thereby, prevent frauds, and perjuries, its almost contemporaneous exposition, in Lemayne vs. Stanley, announces to us, that a liberal and free construction is to be given it that substance, and not form, amounts to a compliance witits provisions, that if the name of a testator appear in any part of a will written by himself , it is sufficiently signed. The same principle, is recognized in Knight vs. Crockford, and in Welford vs. Beazely; in deciding, the latter of which cases the words of Lord Hardwicke are ‘‘the meaning of the statute is to reduce contracts to a certainty, in order to avoid perjury on the one hand, and fraud on the other; and therefore, both in this court, and,.thp, courts of common law, where an, agreement hás been reduced to such a certainty, and the substance of -the statute has been complied with in the material part, the: forms' have never been insisted,on.” Can it then be denied, that such object of the statute is as completely gratified, as much certain-, ty attained by the agreement here relied on,.as if Jt had bee». [151] written in the first instead of the third person? It is not a refinement upon subtlety, a total sacrifice of substance to form, to say, that if the agreement had commenced, “Whereas I, Samuel S. Thomas, have purchased of John S. Frazier, ” &c. the signature is complete, the objects of the statute have been accomplished, and the contract is available; but if it commences, as it does here, “Whereas John S. Frazier hath contracted to sell to Samuel S. Thomas’’ &c. there is is no signing, the provisions of the statute have not been complied with, and the contract is a nullity. And yet such is the effect of this rule, and the construction which has been given to the authorities referred to. An absurdity so glaring will never be sanctioned by this court but upon authorities too conclusive to be disregarded. Nor does this famous rule appear to be consistent with the reasoning of the learned tribunal in the case in which it was adopted, or free from doubt or unshaken hy judicial decisions of the country in which it was promulgated. In Stokes vs. Moore, Baron Eyre, after stating the rule says “huí. I do not understand how a name inserted in the body of an instrument, and applicable to particular purposes, can amount to such an authentication as is required by the statute.” But if a ease had arisen like the present, where the name is inserted in such a way as to control the whole agreement, and be applicable to every purpose of it, the inference would not be unreasonable, from the learned Baron’s own reasoning, that he did understand how it could amount to such an authentication as the statute requires. Moreover, the case of Stokes vs. Moore, is now understood to have turned, not upon the circumstance of the name being contained in the body of the instrument, but its being applicable to particular purposes only, and not governing the whole instrument: as fully appears from the opinion of the Master of the Rolls in Ogilvie vs. Foljambe. In which he says “it is admitted, that provided the name be inserted in such manner as to have the effect of authenticating the instrument, the provision of the act is complied with, and it does not much signify in what part of the instrument the name is to be found. In Stokes vs. Moore the objection was that this authentication was wanting, the name being introduced incidentally in the middle of the paper, and referring, in gram[152] matical construction only, to a single term in the conditions. There was no objection on the score of thé Christian name being wanting, but the ground of the decision was, that the name, being introduced where it was, did not govern the en» tire agreement.” From these remarks of the Master of the Rolls it manifestly follows, that he deemed an agreement, iii the handwriting of a defendant, with his name so inserted in the body of it, as to govern the whole agreement, sufficiently signed within the meaning of the statute. That the name of Samuel S. Thoms is so inserted in the agreement in question cannot' be denied, as it forms a part of every clause and provision which it contains. The case of Saunderson vs. Jackson, determined by Lord Eldon, whilst chief justice of the common pleas, is. also strongly in favour of the plaintiff, and the decison of the supreme court of New-York, affirmed in the high court of errors, in Clason vs. Bailey, 14 Johns. Rep. 487, presenting the identical question before us, is of the most imperious authority. Chancellor Kent, in delivering his opinion, there states, that "it is a point settled, that if the name of a party appears in the memorandum, and is applicable to the whole substance of the writing, and is put there by him or by his authority, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom. Forms are not regarded, and the statute is satisfied if the terms of the contracture in writing, and the names of the contracting parties appear. This doctrine of Chancellor Kent, is so simple in its nature, so easy of application, so consonant to reason and common sense, that supported, as it is, by the opinions of Lord Hardwicke, Lord Eldon, and Sir Wm. Grant, it would be a safer guide to follow, than the technical rule to which the case of Stokes and Moore has given birth. Whether the name of the defendant therefore be so introduced as to authenticate the whole instrument or not, is deemed immaterial, if it be so inserted as to govern or be applicable to the whole substance of the writing.
If it be conceded that Samuel S. Thomas is liable to an action on the agreement, the next and only remaining question to be considered is, can such action be sustained in the joint names of Higdon & Wife, the present plaintiffs? The agreement, [153] designates no person to whom the purchase money is to be paid. View it then as a case of implied promise. Where the law is left to raise the assumpsit, it is always implied in favour of those who aré the meritorious cause of action, or from whom the consideration moves. The consideration here being the .inheritance of the wife, in or over which, during his life only, has the husband any interest or control, in the absence of an express promise, the law will raise one to husband and wife, ora which the husband may, at his pleasure, either sue in his own. name, or in the names of himself and wife. But suppose ifc Be considered that the agreement does amount to an express promise to pay to the husband; is it'not perfectly consistent with legal principles, in analogous cases, that the husband having acted, by the consent of - the wife, concerning a subject matter over which he had no power or control but in virtue of such consent, shall be deemed to have acted on the account, and for ilie benefit of himself and wife. Nor would his concealment of the principles on which he acted at all vary the case. It is every day’s practice for the owners of merchandize, or other property, to sue in their own names on contracts of sale made by their agents, to whom express promises to pay have been made, and with whom the vendee’s dealt, as sole owners of the property, having no knowledge of their principals. So, also where one part-owner sells, as his own, the property of his firm, all the partners may sue. But there could be no concealment from the defendant of the intentions with which Thomas Higdon acted through his agent, John S. Frazier, as the condition of the bond of conveyance is, that the deed to Samuel S. Thomas shall be executed by Higdon and Wife. That the defendant is in anywise damnified by the present form of action, has not been even insinuated.
It is not intended to impugn the numerous decisions' which have been cited, that a feme covert cannot be joined in an action to recover the price of property sold by her, and which belonged to her before coverture; or the value of services by her personally rendered, unless there be made to her an express promise of payment. But these decisions apply only to cases of goods and chattels, whjch by the marriage vested absolutely In the husband; as does the right of her personal services and [154] áre wholly inapplicable to á case where the rights of the wife pass not to the husband, hut remain and survive to her, and over which the htisband has no power of transfer, but by the consent and cb-operation of the wife.
Being of opinion that, upon.the whole circumstances of the case, the plaintiffs are entitled to recover, and in the form of action too in Which they have sought to prosecute their rights, We reverse the judgment of the county court.
JUDOMENf REVERSED, AND PROCEDENDO AWARDED.