By the Court,
Savage, Ch. J.
The defendant takes two exceptions to the declaration : 1. That the contract declared on is void, being made by James Hillhouse in his own name as agent for the state of Connecticut; 2. That the plaintiff not being a party to the contract, cannot maintain an action thereon.
The first inquiry which presents itself on perusing the instrument declared on, is, whose contract is it ? The contract itself says that it is entered into between James Hillhouse, commissioner of the school fund of the state of Connecticut for and in behalf of the said state, to and for the use and benefit of said school fund, of the first part, and Joshua Field of the second part. Is James Hillhouse the party ? or is it the state of Connecticut 1 or the school fund of the state of Connecticut l We have no reason to believe that the school fund has any corporate capacity, and without such capacity it cannot sue or be sued. The state of Connecticut and James Hillhouse have capacity to sue, but a contract, to be obligatory upon any party, must be made in the name of such party ; and if it is executed by an attorney or agent, the attorney must contract in the name of his principal. If an attorney contract in his own name, describing himself as agent or attorney for his principal, the contract is the contract of the attorney and not of the principal. If the contract declared on was intended to be obligatory on the state of Connecticut, it should have been entered into between “ the state of Connecticut by James Hillhouse, the attorney or agent of the said state of the first part,” but the state is no party to this contract. By the fourth article, it seems the parties thought the state would be bound by the contract, but there is no obligation upon the state. If it is a valid contract^ it must therefore be the individual contract of James Hillhouse, and the titles an[90]*90nexed to his name are mere description, i had occasion in Stone v. Wood, 7 Cowen, 454, to examine some of the cases on this point. In that case, Wood described himself as agent of J. & R. Raymond, but it was held that Wood and not the Raymonds was bound. In Fowler v. Shearer, 7 Mass. R. 19, the instrument was in this form: “Know ye that I, Abigail Fowler, of, &c. and also as attorney to John Fowler, in consideration, &c. have given.” It was held this was not the deed of John Fowler. Parsons, chief justice, says, “ If an attorney has authority to convey lands, he must do it in the name of the principal. The conveyance must be the act of the principal and not of the attorney, otherwise the conveyance is void.” In that case the attorney made the conveyance; here the attorney, if indeed he had authority, makes the contract in his own name. In that case it was held to be void as to passing any estate of John Fowler ; so here no obligation is imposed on the state of Connecticut. It is therefore the contract of James Hillhouse or it is void. The defendant contends that it is void on the authority of Frontín v. Small, 2,Ld. Raym. 1418, and Bogert v. Be Bussy, 6 Johns. R. 95. In the first of these cases an attorney executed a lease in her own name as attorney for James Frontín, to whom the rent was reserved. But the court held that the lease not being executed as the deed of James Frontín, the owner, passed no state; of course there was no consideration for the covenant to pay rent. The deed therefore was void upon its face. In the latter case Bogart and another, as attorneys for Simon Laurentiús, agreed to execute a deed to the defendant De Bussy of a certain farm, and the defendant agreed to pay the price agreed on. The court said, if the covenant is to be considered as made with Laurentius, the principal, the suit ought to have been brought in his name. If, however, it is to be considered as made with the attorneys, in their own names as attorneys, then the whole agreement is void, and no action can be maintained upon it; and they cite Frontín v. Small. The contract was void, because the deed which they bound themselves to execute would be void and convey nothing ; the court therefore would not compel the defendant to pay his money for that which would be worthless to him.
[91]*91In this case, however, the contract is different; it is not that Uhe attorney shall convey the lot which was the subject of the contract, but that the owner shall convey—that the principal shall execute a deed conveying a good title; and the defendant covenants to pay in consideration of the attorney’s agreement to sell, and “ the covenant s hereinafter expressed,” among which is the covenant that the state shall execute a deed. This is a covenant which, if fulfilled, is a good consideration, and is in my opinion sufficient to support the covenant of the defendant •to pay the money. Had the agreement been that Hiilhouse should convey the lot in question, the case could not have been distinguished from that oí Bogart v. De Bussy. But the distinction just mentioned appears to me to place it upon a different principle ; a person may contract to convey in future real estate, which at the time of tire contract he does not own, and such contract will be valid; so he may contract to procure a conveyance from the owner, and such substantially is the present case. The contract therefore is not void, but is a. valid contract.
The next question is, whether the plaintiff can maintain this action, being a stranger to the contract ?
In the case of Sailly v. Cleveland & Hutton, post, decided this term, I have referred to some cases upon the question, whether, in a simple contract, a promise made to a third person is valid ; and the rule seems to be establised in this court, and so are the later cases in England, that such a promise is valid when made for the benefit of such third person, the promisee; but unless such third person has the interest in the subject matter of the promise, he cannot maintain an action upon it. When, however, the contract is under seal and inter partes, the rule is more strict, and no one but a party to the instrument can maintain an action for a breach of it. By a deed inter partes is understood an instrument commencing thus: “ This deed, concluded on, &c. between A. of the one part and B. of the other part.” The effect of such an introduction is to declare that the covenants are intended to be made between those parties and none others, Hammond on Parties to Actions, 18; Com. Dig. Fait. D. 2, n. 1.; and should the deed contain a covenant that A. covenants with J. L. to pay him £20, the words with JL are inoperative, unless to denote for whose benefit the stip[92]*92ulation is made, and B. alone can sue for the non-payment, idem. So, none shall take a present interest by a deed if he be not a party to it. Com. Dig. Fait. C. 2, D. 2. 1 Shower, 59. So a party to a deed cannot covenant with one who is a stranger; idem.; though in a feoffment, a warrant of attorney to A., not a party, to make livery of seisure is good, though formerly held otherwise. 1 Show. 59. So Lord Coke says, Co. Lift, 232, a. and here is also a diversity to be understood, that any stranger to the indenture may take by way of remainder, but he cannot in this case take any present estate in possession, because he is a stranger to the deed. In a note to this passage by Mr. Hargrave, it is stated that in Salter v. Hedgely, Carth.
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By the Court,
Savage, Ch. J.
The defendant takes two exceptions to the declaration : 1. That the contract declared on is void, being made by James Hillhouse in his own name as agent for the state of Connecticut; 2. That the plaintiff not being a party to the contract, cannot maintain an action thereon.
The first inquiry which presents itself on perusing the instrument declared on, is, whose contract is it ? The contract itself says that it is entered into between James Hillhouse, commissioner of the school fund of the state of Connecticut for and in behalf of the said state, to and for the use and benefit of said school fund, of the first part, and Joshua Field of the second part. Is James Hillhouse the party ? or is it the state of Connecticut 1 or the school fund of the state of Connecticut l We have no reason to believe that the school fund has any corporate capacity, and without such capacity it cannot sue or be sued. The state of Connecticut and James Hillhouse have capacity to sue, but a contract, to be obligatory upon any party, must be made in the name of such party ; and if it is executed by an attorney or agent, the attorney must contract in the name of his principal. If an attorney contract in his own name, describing himself as agent or attorney for his principal, the contract is the contract of the attorney and not of the principal. If the contract declared on was intended to be obligatory on the state of Connecticut, it should have been entered into between “ the state of Connecticut by James Hillhouse, the attorney or agent of the said state of the first part,” but the state is no party to this contract. By the fourth article, it seems the parties thought the state would be bound by the contract, but there is no obligation upon the state. If it is a valid contract^ it must therefore be the individual contract of James Hillhouse, and the titles an[90]*90nexed to his name are mere description, i had occasion in Stone v. Wood, 7 Cowen, 454, to examine some of the cases on this point. In that case, Wood described himself as agent of J. & R. Raymond, but it was held that Wood and not the Raymonds was bound. In Fowler v. Shearer, 7 Mass. R. 19, the instrument was in this form: “Know ye that I, Abigail Fowler, of, &c. and also as attorney to John Fowler, in consideration, &c. have given.” It was held this was not the deed of John Fowler. Parsons, chief justice, says, “ If an attorney has authority to convey lands, he must do it in the name of the principal. The conveyance must be the act of the principal and not of the attorney, otherwise the conveyance is void.” In that case the attorney made the conveyance; here the attorney, if indeed he had authority, makes the contract in his own name. In that case it was held to be void as to passing any estate of John Fowler ; so here no obligation is imposed on the state of Connecticut. It is therefore the contract of James Hillhouse or it is void. The defendant contends that it is void on the authority of Frontín v. Small, 2,Ld. Raym. 1418, and Bogert v. Be Bussy, 6 Johns. R. 95. In the first of these cases an attorney executed a lease in her own name as attorney for James Frontín, to whom the rent was reserved. But the court held that the lease not being executed as the deed of James Frontín, the owner, passed no state; of course there was no consideration for the covenant to pay rent. The deed therefore was void upon its face. In the latter case Bogart and another, as attorneys for Simon Laurentiús, agreed to execute a deed to the defendant De Bussy of a certain farm, and the defendant agreed to pay the price agreed on. The court said, if the covenant is to be considered as made with Laurentius, the principal, the suit ought to have been brought in his name. If, however, it is to be considered as made with the attorneys, in their own names as attorneys, then the whole agreement is void, and no action can be maintained upon it; and they cite Frontín v. Small. The contract was void, because the deed which they bound themselves to execute would be void and convey nothing ; the court therefore would not compel the defendant to pay his money for that which would be worthless to him.
[91]*91In this case, however, the contract is different; it is not that Uhe attorney shall convey the lot which was the subject of the contract, but that the owner shall convey—that the principal shall execute a deed conveying a good title; and the defendant covenants to pay in consideration of the attorney’s agreement to sell, and “ the covenant s hereinafter expressed,” among which is the covenant that the state shall execute a deed. This is a covenant which, if fulfilled, is a good consideration, and is in my opinion sufficient to support the covenant of the defendant •to pay the money. Had the agreement been that Hiilhouse should convey the lot in question, the case could not have been distinguished from that oí Bogart v. De Bussy. But the distinction just mentioned appears to me to place it upon a different principle ; a person may contract to convey in future real estate, which at the time of tire contract he does not own, and such contract will be valid; so he may contract to procure a conveyance from the owner, and such substantially is the present case. The contract therefore is not void, but is a. valid contract.
The next question is, whether the plaintiff can maintain this action, being a stranger to the contract ?
In the case of Sailly v. Cleveland & Hutton, post, decided this term, I have referred to some cases upon the question, whether, in a simple contract, a promise made to a third person is valid ; and the rule seems to be establised in this court, and so are the later cases in England, that such a promise is valid when made for the benefit of such third person, the promisee; but unless such third person has the interest in the subject matter of the promise, he cannot maintain an action upon it. When, however, the contract is under seal and inter partes, the rule is more strict, and no one but a party to the instrument can maintain an action for a breach of it. By a deed inter partes is understood an instrument commencing thus: “ This deed, concluded on, &c. between A. of the one part and B. of the other part.” The effect of such an introduction is to declare that the covenants are intended to be made between those parties and none others, Hammond on Parties to Actions, 18; Com. Dig. Fait. D. 2, n. 1.; and should the deed contain a covenant that A. covenants with J. L. to pay him £20, the words with JL are inoperative, unless to denote for whose benefit the stip[92]*92ulation is made, and B. alone can sue for the non-payment, idem. So, none shall take a present interest by a deed if he be not a party to it. Com. Dig. Fait. C. 2, D. 2. 1 Shower, 59. So a party to a deed cannot covenant with one who is a stranger; idem.; though in a feoffment, a warrant of attorney to A., not a party, to make livery of seisure is good, though formerly held otherwise. 1 Show. 59. So Lord Coke says, Co. Lift, 232, a. and here is also a diversity to be understood, that any stranger to the indenture may take by way of remainder, but he cannot in this case take any present estate in possession, because he is a stranger to the deed. In a note to this passage by Mr. Hargrave, it is stated that in Salter v. Hedgely, Carth. 76, Lord Ch. J. Holt held that a party to a deed cannot covenant with one who is no party to it; but that one who is no party to a deed may covenant with one who is a party, and oblige himself by sealing of the deed. This is the same case reported in 1 Show. 58,9, as Salter v. Kidley. That was covenant on a deed reciting certain articles made between A. and E., and that one B. should perform all that on his part were to be performed, and that these articles were made between A. and E., but by that deed B. did covenant and agree to pay ; that B. did not pay and that defendant hath not paid, and so has broken his covenant. Demurrer: and it was agreed that B. was no party to the deed, and so not bound, though he sealed it. Holt, Ch. J. asked, why cannot he oblige himself by a deed, if there be express words for it, and he seals it l Suppose at the end of the indenture it be, “ and be it known that A. B. for himself covenants,” and he seals it, why should not this oblige him 1 He adds, a man cannot take immediately where he is not a party ; but where do you find that a man cannot give without being a party ? In the case of Stone v. Cordon, 3 JVdaule fy Sel. 322, Lord Ellenborougb, discussing the subject of covenants in deeds inter partes, remarks that where there is such a deed as is technically called a deed inter partes, that is, a deed importing to be between the persons who are named in it as executing the same, and not as some deeds are general to “ all people,” the immediate operation of the deed is to be confined to those persons who are parties to it; no stranger to it can take under it, except by way of remainder, nor can any stran[93]*93ger sue upon any of the covenants it contains; several cases are cited. In the case of Hornbeck v. Westbrook, 9 Johns. R. 73,5, the court, in giving their opinion, say, “ A person who is not a party to a deed cannot take any thing by it, unless it be by way of remainder ; the grantor cannot covenant with a stranger to the deed ; this is an acknowledged rale of law citing Salter v. Kidgely, Carth. 76. Upon authority, therefore, it seems to be settled that no one but a party to a deed can take any benefit under it. Even if this were not a deed inter partes, and the action was in assumpsit, no consideration having passed from the defendant, but from Hillhouse, no action would lie, as no interest is shown in the present plaintiff.
Judgment for defendant on demurrer.