Waddel v. Glassel

11 Ala. 568

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

COLLIER, C. J.

Previous to the act of 1839, the contract declared on would not have been recognized as a sealed instrument as to either the plaintiff or defendant; because the writing did not contain a recognition that the scrawl set opposite the name of the plaintiff was intended to be the seal of either party. [Minor’s Rep. 187.] The act referred to enacts “ that all covenants, conveyances, and all contracts in writing, which import on their face to be under seal, shall be taken, deemed and held to be sealed instruments, and shall have the same effect as if the seal of the party or parties were affixed thereto, whether there be a scrawl to the name of such party or parties or not.” Clay’s Dig. 138.

Taking this statute in connection with the case cited from Minor, and we think it is clear that ths> agreement in question was not under seal. To give to it such a character, it should import upon its face, that the parties thus intended to execute it. This is most usually indicated by the conclusion of a writing, which recites that the parties have subscribed their names and affixed their seals; “ witness our hands and seals,” &c.

We will not say that without such a recognition in the body of the writing, it cannot be a sealed instrument. If a scrawl was placed opposite the name of each of the contracting parties, and the letters “L. S.” or the word “seal” written therein, perhaps that dignity would be imparted-to it. But where the contract is silent in respect to the intention of the parties to seal it, and a scrawl with the letters “ L. S.” inserted in it, is placed opposite the name of the party in whose favor the principal duty is to be performed, the legal construction of the writing will not authorize it to be treated as a sealed instrument.

If the statute of six years had run, could not the defendant avail himself of it, as a bar, or would the statute of sixteen years, the limitation to actions on specialties, apply. We think most certainly the former, as the defendant did not employ a seal for himself, and there is nothing on the face of the paper to show that he adopted for himself the scrawl • of the plaintiff.

In no view in which the question arising upon the record has presented itself to us, can the ruling of the circuit court be supported — its judgment is therefore reversed, and the cause remanded.